DEC-E2005-001 Full Case Report

James Kenny -v- Board of Management, Comprehensive School, Tarbert

1. DISPUTE
   
   1. The dispute concerns a claim by the Teachers Union of Ireland, on behalf of Mr. Kenny, that he was subjected to discriminatory treatment on the grounds of gender and age in terms of Sections 6(1), 6(2)(a), 6(2)(f) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not appointed to the position of Deputy Principal of the respondent organisation.
      
2. BACKGROUND
   
   1. The complainant commenced employment with the respondent school as a teacher in 197 He applied for the position of Deputy Principal of the Secondary School and attended for interview on 18th June, 200 Following the interview he was informed by the then Principal of the respondent school that he was unsuccessful in his interview and a female candidate had been appointed to the position. It is the complainant’s contention that he was better qualified and had more experience than the successful candidate. The complainant argues that the respondent has discriminated against him on the grounds of gender and age in relation to this promotion competition. The respondent has denied these allegations.
   2. Consequently the complainant referred a complaint to the Director of Equality Investigations on 13th December, 2002 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 21st October, 200 Further additional information was received from both parties with the final information being received on 9th December, 2004.
      
3. SUMMARY OF THE CLAIMANT’S SUBMISSION
   
   1. According to the complainant he applied for the position of Deputy Principal in the respondent organisation and the interviews were held in June, 200 There were five applicants for the post, all from the respondent organisation, four of whom were male and one female. The complainant states that the successful candidate was female.
   2. The complainant states that he was over 50 years of age while the other candidates were under 50 years of age at the time of interview for the position of Deputy Principal of the respondent organisation. It is the complainant’s contention that he was better qualified and had more experience than the successful candidate. He alleges that he was discriminated against on the grounds of his gender and his age in his application for the post. The complainant further submits that his understanding, skills and competencies in the respondent organisation are superior to the successful candidate and he has an excellent track record in relation to his involvement in both curricular and administrative aspects of the respondent organisation. It is the complainant’s belief that he answered all questions put to him at interview in a competent manner.
   3. The complainant alleges that the respondent operated a bias towards a female and a younger candidate in the ranking of candidates following the interviews in June, 2002 and that he was discriminated against on the grounds of gender and age. It is his contention that prima facie evidence of discrimination causes the burden of proof to shift to the respondents to prove that their failure to appoint him to the post of Deputy Principal can be justified on grounds other than gender or age.
   4. According to the complainant unsuccessful candidates at interview were informed that evening by telephone by the then Principal of the respondent organisation. The complainant alleges that the then Principal told one of the unsuccessful candidates that the Chairman and Secretary of the Interview Board were both closely connected to the successful candidate and consequently they stepped back from the decision making process and left the final decision on the appointment of Deputy Principal to the other member of the Interview Board, an Inspector from the Department of Education and Science. It is the complainant’s submission that two of the members of the Interview Board could not be objective in their decision making and, in the interests of fairness to all candidates, should have opted out of the entire interviewing process and appoint a completely independent panel.
   5. In his submission the complainant points to a lack of transparency and inconsistency in the marking system and contends that he was discriminated against directly and indirectly on the grounds of gender and age because of this lack of transparency. According to the complainant he received the maximum marks he could achieve for Qualifications, Professional Experience as Educator and Manager of Learning. He received 95% of marks for Understanding which included the following competencies:
      • Understandings/Vision re: Comprehensive School Role
      • Understanding of Requirements of Educational Leadership and Team Building
      • Understanding of Social Context of the School.
      However for the category ‘Skills and Competencies’ the complainant states that he received 40/60 (66%) - the lowest rating of the three categories. According to the complainant ‘Skills and Competencies’ incorporates many of the qualities and skills sought for ‘Professional Experience as Educator and Manager of Learning and for Understandings hence logically there should be a high consistency between each of the three Sections. It is the complainant’s contention that the marks allocated for ‘Skills and Competencies’ was based on an overall subjective impression rather than on an objective analysis and raises the question as to how this subjective decision was reached. The complainant further submits that he was asked no questions by the interview board on his energy levels or his levels of enthusiasm and there was no reference to his networking skills or his flexibility. According to the complainant he was not given a breakdown of the marks awarded under the various subsections of ‘Skills and Competencies’ and he concludes that there was a lack of transparency in the marking process. In his submission the complainant sets out in detail his qualifications and experience under the categories under which marks were awarded at interview.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   
   1. The respondent states that the complainant’s claim is one of discrimination on grounds of gender and age in relation to the selection process for promotion to the position of Deputy Principal in the respondent organisation. According to the respondent the complainant relies on the fact that he was aged 58 at the time of the interview whereas other candidates were under 50 years of age and the successful candidate was female. The respondent states that the complainant is claiming that his experience, qualifications, understanding, skills and competencies in the school were superior to that of the successful candidate. To this end the complainant makes certain criticisms of the interview process and how he was treated in the course of his interview and the manner in which he was marked by the interview board. The respondent also notes that the complainant alleges that the respondent operated a bias towards a female and younger candidate in how the candidates were ranked in the competition. In his submission the complainant has specifically stated that he was discriminated against directly and indirectly on grounds of gender and age. The respondent states that the complainant has failed to refer to any requirement with which he was expected to comply or practice that operated in a manner that impacted more heavily on persons of the complainant’s age and gender. It is therefore the respondent’s submission that, as a matter of law, the complainant has failed to establish any case of indirect discrimination and that his case is one of direct discrimination.
   2. The respondent does not accept as correct the approach of Equality Officers and the Labour Court in the past that prima facie evidence of discrimination on the grounds of age causes the burden of proof to shift to the respondent in the absence of any provision in the Employment Equality Act, 1998 permitting an Equality Officer to do so. According to the respondent this approach has been rejected by the High Court² in the context of the Employment Equality Act, 1977 where it was argued that the Labour Court had misdirected itself in law in introducing a criteria that did not exist in the relevant statutory enactment. In relation to the claim of discrimination on the grounds of gender the respondent accepts that Article 3(1) of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations of 2001 applies to this claim.
   3. In relation to the claim of discrimination on the grounds of gender the respondent states that it is a matter of law³ that the complainant must prove facts of sufficient significance to raise a presumption of discrimination and the respondent contends that the complainant has failed to do so. The respondent notes that in the case of Mitchell the Labour Court found that the complainant had failed to shift the burden of proof where the complainant in that case had relied primarily on her subjective view of her qualifications and experience in seeking to make the case that she was superior to the successful candidate. The respondent refers to the Labour Court Determination in theGleeson⁴ case where a number of factors combined to persuade the Court to shift the burden of proof to the respondent. It is argued by the respondent that it is not the responsibility of the Equality Officer to decide on who is the most meritorious candidate for the position⁵. The respondent cites the High Court⁶ view that the fact that there is a difference in gender (in that case) between the successful and unsuccessful candidate for a post does not require a Tribunal/ Labour Court to look to the employer for an explanation. The respondent notes that this was relied upon by the Equality Officer in the case of Robert Sheehan v DPP and Others⁷. In its submission the respondent, without prejudice to the foregoing, denies that there is any evidence of the complainant having been treated less favourably to the successful candidate in how his application was processed or in how he was treated at interview. The respondent states that the complainant was treated in the same manner as the successful candidate and indeed all other candidates including those candidates ranked ahead of him.
   4. The respondent denies the allegation that the then Principal told another unsuccessful candidate that the final decision had been left to the Inspector from the Department of Education and Science because the other two members of the interview board were too closely connected with the successful candidate. According to the respondent the successful candidate was known to the Chairperson and Secretary of the interview board prior to the interviews, as was the complainant. The respondent therefore denies the allegations of unfair procedures, conflict of interest and breaches of best practices.
   5. The respondent denies the complainant’s allegations of lack of transparency and inconsistency in the marking system and it does not accept that the difference in marks awarded to the complainant between the three sections is untenable. According to the respondent each section constituted a distinct category on which marks were allocated on the basis of a candidate’s CV and performance at interview. It is the respondent’s submission that the complainant’s performance at interview in terms of establishing his skills and competencies was considerably less than that of the successful candidate and indeed that of the candidate ranked in second position. The respondent submits that the complainant appeared under severe pressure and stress during the interview and this was taken into account in assessing him. At the interview it was recorded by the Secretary as the complainant having been “Good with reports, etc; Meeting persons; Slightly defensive/sense of pressure”whereas the successful candidate is recorded as having been“Very clear; Energetic; Managed conflict well”. In terms of the candidate ranked second to the successful candidate and approved for appointment, the comments made were “Very fluent – and clear; Bright; V(ery) energetic; Networking etc”. On the basis of the interviews the interview board formed the view that the complainant would be less able than the candidates ranked ahead of him to take charge in difficult circumstances relating to pupils or staff or parents and to present the “air of authority” required of the post.
   6. While the complainant has gone into considerable detail in his submission to set out his (subjective view) of his qualifications, experience, understandings, skills and competencies and compare them to what he knows of the other candidates the respondent states that no such comparison was undertaken. The respondent denies that the complainant was a superior candidate to the unsuccessful candidate and it notes that the interview board could only assess all candidates on the basis of their CVs, application forms and performance at interview. According to the respondent the application form contained a considerable amount of information giving the complainant ample opportunity to raise matters he considered relevant to the process and during the course of his interview the complainant was afforded ample opportunity to provide the interview board with further relevant information. The respondent says that the complainant was not treated any differently or less favourably to the successful candidate or indeed any other candidate in how his interview was conducted. The respondent fully accepts that the complainant was an impressive candidate with a wide range of expertise and experience. However it says that there is no evidence that he was a superior candidate to the successful candidate and the complainant has been unable to adduce any evidence to this effect. The respondent denies that any facts that the Equality Officer may accept as having been established by the complainant are of sufficient significance to justify the shifting of the burden of proof to the respondent in this regard.
   7. In relation to interview notes the respondent states that the complainant has criticised the failure of the members of the interview board to retain the notes of interview other than the notes of the Secretary. It is the respondent’s submission that the notes of the Secretary are sufficient to establish the basis on which the successful candidate was appointed which is the purpose of having such notes available to the Equality Tribunal. Without prejudice to this argument the respondent states that it does not accept that the failure to retain all interview notes establishes prima facieevidence of discrimination such as to shift the burden of proof to the respondent. In making this argument the respondent relies on the Determination of the Labour Court in the case of Dublin Corporation v McCarthy⁸ where the Court found that the interview board in that case “did not maintain adequate notes on the performance of the candidate” but nevertheless the Court concluded that “the result was a fair and objective assessment of the overall suitability of the candidates”. In this regard the respondent also cites the Labour Court Determination in the case of National Museum of Ireland & Ors. v O’Dowd⁹.
   8. The respondent submits that the fact that a male candidate was approved for appointment to the position and was ranked higher than the complainant defeats his claim that he was discriminated against on the grounds of gender and in making this argument relies on the decision of the High Court in Wilton v Irish Steel¹⁰. In that case the claimant sought to compare herself with a particular male employee. In the Equality Officer investigation of that claim it was found that the claimant was doing like work with her named comparator but that there were grounds other than sex for the difference in pay between the claimant and the named comparator. The Equality Officer came to this conclusion following a detailed comparison of the work of the named comparator with another male employee who was at the same level as the claimant. On appeal the High Court upheld the Equality Officer recommendation. It is the respondent’s submission that the decision of the High Court, which is binding on the Equality Officer, sets an authority for the proposition that where a male was approved for appointment to the position over the complainant, the complainant’s case of discrimination on grounds of gender is defeated.
   9. In the event that the Equality Officer is of the view that the burden of proof should shift to the respondent, the respondent is satisfied that a proper consideration of the evidence will satisfy the Equality Officer that the successful candidate was selected on grounds other than age or gender.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of gender and age in terms of Sections 6 and 8 of the Employment Equality Act, 1998 when he was not appointed to the vacant position of Deputy Principal at the respondent school. 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.
   2. The complainant applied for the vacant position of Deputy Principal in the respondent school in the summer of 200 He was one of five applicants for the position, four male and one female. All candidates were invited for interview in June, 200 The complainant attended for interview and was subsequently informed that he had been unsuccessful in his interview. The female applicant was successful in the competition and was appointed to the position. The complainant contends that he was superior to the successful candidate given that he was better qualified and had more experience than her. He further alleges that his understanding, skills and competencies were superior to the successful candidate. On this basis he contends that he was discriminated against on the grounds of gender and age. The complainant is male and was 58 years of age at the time of interview whereas the successful candidate is female and was under 50 years of age at the time of interview. The respondent has denied these allegations.
   3. The Labour Court in the case ofMitchell¹¹ said “…if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, then the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. …this means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on the grounds of her sex. If she does not, her case cannot succeed”. In this case the complainant alleges that he was superior to the successful female candidate in that he was better qualified for the vacant position and had more experience. On this basis he alleges that he was discriminated against on the grounds of gender and age. I note that the interview board allocated a total of 20 marks for qualifications and experience and applied these marks to all the candidates. The complainant had a Diploma whereas the successful candidate did not and accordingly the complainant received two marks more that the successful candidate for his higher qualifications. I note that the interview board gave the complainant due recognition for his superior qualifications but deemed his experience equal to that of the successful candidate as both had experience as Assistant Principal and had been deemed to have performed well.
   4. The interview board also assessed candidates on the basis of Understandings, Skills and Competencies. On the assessment form the interview board set out clearly what was meant by Understandings and it allocated 20 marks to this criteria. The interview board listed six skills and competencies which it assessed and it allocated a total of 60 marks to this criteria. I note that there was no breakdown of the 60 marks allocated for skills/competencies hence it was unclear if each skill/competency was being marked equally. It was clearly stated on the assessment form that “all candidates to be presented with questions/opportunities to respond relating to the items listed”. I am not satisfied that the complainant can argue that he was superior to the successful applicant in relation to these criteria which were based on the interview board’s assessment of candidates and how they performed at interview in terms of their answers to questions asked. I note that the complainant considers that he answered all questions asked in a competent manner. However he was not present at the successful applicant’s interview to comment on how well or otherwise she answered the questions put to her. Furthermore the absence of the questions put to candidates and all the interview notes contributes to my difficulty in drawing any conclusion in this regard.
   5. Bearing in mind that Labour Court’s view in Mitchell I do not find that the difference in qualifications between the complainant and the successful candidate are of sufficient significance to establish a prima faciecase of discrimination on the grounds of gender and age when he was not successful in his application for the position of Deputy Principal in the respondent school.
   6. The only notes which were retained following the interviews were those recorded by the Secretary of the interview board. Notes made at the interview by the Chairperson of the board and the other independent member of the board (an inspector from the Department of Education and Science) were destroyed subsequent to the interview. I note that the respondent has argued that it is sufficient for an Equality Officer to receive only one set of notes of interview. I strongly disagree with this view and note that the Labour Court too has been critical of the practice of destroying notes. In the case of the National Museum of Ireland and Dr. Anne O’Dowd¹² I note that in a situation where the notes of the chairman of the board were retained the Labour Court stated “This failure to retain notes and records of the other interviewers is a matter of concern as the keeping of notes and records are of great assistance to the Court when investigating allegations such as the complainant’s. The Court has commented on this practice of destroying interview notes in the past and expects that if it has not already ceased, it will cease in the future”. Of major concern to me at the hearing of this claim was the attitude of the independent member of the interview board who informed me that she has sat on numerous interview boards for teaching positions (including senior teaching positions) and following every interview she destroys her notes before she leaves the interview room. Given this person’s position I am very concerned at this practice as I consider that she should have been well aware that this is not an appropriate action.
   7. The interview board in this case did follow a pre-determined marking scheme. However one issue was raised which caused great concern to the complainant and which I consider warrants mention. Following the interview the Principal of the School, who was not a member of the interview board, rang each of the candidates to inform them of the outcome of the interview. It was alleged that the Principal made comments to the candidate who was placed second and these comments were not made to the other candidates. The comments allegedly related to the process adopted by the interview board in the making of the decision. It is not my place to comment on the merits or otherwise of the actual incident or the comments given that they did not impact on this claim as I have already found that the complainant has failed to establish aprima facie claim of discrimination. However I consider that it was inappropriate for the Principal to ring the candidates subsequent to the interview informing them of the outcome. A standard letter issued to all unsuccessful candidates and this was sufficient to inform candidates of the outcome without causing any ambiguity.
   8. The complainant has argued that he was indirectly discriminated against on the grounds of gender and age when he was not appointed to the position of Deputy Principal. He has based this argument on the fact that since 1973 there have been three (1973, 1974 and 2002) appointments to the position of Deputy Principal one of which was male while the other two were female. The persons appointed to Deputy Principal were later appointed to the position of Principal of the respondent school. The complainant is of the view that there are clear similarities between the appointment process of 1994 and 200 According to the complainant in 1974 six older staff members were by-passed for the appointment of a younger female candidate. The complainant says that there was a gender and an age bias in operation in the school at this time and the general view among staff was that the Board had a policy of appointing a younger candidate who would be groomed for the role of future Principal of the school. It is the complainant’s submission that this culture of appointment to the position of Deputy Principal still prevailed in the 2002 competition. I am satisfied that there is no evidence to support this perception in relation the 2002 competition which is the subject of this investigation. Furthermore I am satisfied that there is no evidence that the complainant was indirectly discriminated against on the grounds of his gender or his age.
      
6. DECISION
   
   1. In view of the foregoing I find that the Board of Management, Comprehensive School, Tarbert did not discriminate against Mr. James Kenny on the grounds of gender and age in terms of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.

Gerardine Coyle,
Equality Officer
10th January, 2005

²High Court – Minister for Industry and Commerce v Campbell [1996] CLR 106,
³Labour Court – Southern Health Board v Mitchell – DEE011,
⁴Labour Court – Gleeson v Rotunda Hospital – DEE003,
⁵Labour Court – Dublin Institute of Technology v A Worker – DEE994,
⁶High Court – Davies v Dublin Institute of Technology [2000] Unreported,
⁷Equality Officer Decision – DEC-E2002-047,
⁸Labour Court Determination – DEE986,
⁹Labour Court Determination – DEE033,
¹⁰High Court [1999] CLR 1,
¹¹Labout Court Determination – Southern Health Board (Cork University Hospital) and Dr. Teresa Mitchell – DEE011,
¹²Labout Court Determination – DEE033 dated 25th April, 2003