Murray (represented by the INTO ) -v- Scoil Mhuire (represented by Cliona Kimber B.L., instructed by Arthur O' Hagan Solicitors) and The Department of Education and Science
- CLAIM
- The case concerns a claim by Ms. Anne Murray that Scoil Mhuire, Swanlinbar, County Cavan, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to access to a teaching post.
- The case concerns a claim by Ms. Anne Murray that Scoil Mhuire, Swanlinbar, County Cavan, discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to access to a teaching post.
- BACKGROUND
- The complainant applied for the position of permanent teacher and was unsuccessful in her interview. The successful candidate was female. She submits that the reason she was not appointed was her pregnancy, impending maternity leave and the consequent delay in being able to take up the position. She alleges that she was asked during the interview about her maternity leave and specifically when her maternity leave would end. She alleges that she was discriminated against on the gender ground. The respondent denies the allegation of discrimination and submits that each candidate was assessed at interview on the basis of objective criteria which were in no way connected to gender. It further submits that the complainant was not asked about when her maternity leave would end and that the question as to the availability to take up the appointment which was asked of all candidates had no bearing whatever on the outcome of the interviews.
- The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 26 May 2003. On 19 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 2 March 2004, from the first named respondent on 24 June 2004 and from the second named respondent on 9 August 2004. A joint hearing of the claim was held on 13 December 2004.
- SUMMARY OF THE COMPLAINANT’S WRITTEN SUBMISSION
- A position of permanent teacher in Scoil Mhuire, Swanlinbar, Co. Cavan was advertised in the press on 13 November 2002. The complainant was informed by the Chairperson of the Board of Management of the vacancy prior to that while the complainant was attending a family wedding. The Chairperson invited her to apply and the complainant advised the Chairperson that she would be going on maternity leave in December 2002.
- The complainant applied for the position of teacher enclosing her CV and a reference. The Chairperson of the Board of Management phoned her and invited her for interview. The interview board was comprised of the Chairperson of the Board of Management, the Principal teacher of the school and the Principal of another school some distance away. Questions at interview dealt with what the complainant had to offer the school, the curriculum, handling children’s special needs and dealing with parents. The complainant was also asked about her maternity leave and specifically when the maternity leave would end. Another member of the interview board commented that it was difficult to get substitute teachers and referred to a neighbouring school which had such a difficulty.
- The following week, the complainant was informed by telephone by the Chairperson of the Board of Management that she was unsuccessful. She was informed that it was decided that because of her unavailability which was due to her absence on maternity leave, she would not be appointed to the job. The complainant subsequently requested the return of her CV and references. The Chairperson visited her at her house and returned the documentation. In the course of their conversation, the Chairperson was apologetic for having approached her about applying for the job and stated that he did not have any say in who got the job.
- The complainant has no knowledge of the qualifications or experience of the appointee to the position. She notes that the teacher who obtained the position was appointed Deputy Principal in the school some months later. She believes that she was discriminated against and treated less favourably due to her pregnancy, impending maternity leave and the consequent delay in taking up the post. The question asked at interview concerning the duration of the complainant’s maternity leave clearly indicated that her pregnancy was taken into account in the appointment process. The further comment about the difficulty of employing substitute teachers reinforces the complainant’s belief that her gender, pregnancy and maternity leave were factors which resulted in her non-appointment to the post. When the complainant was telephoned by the Chairperson and in his subsequent visit to her house to return her documentation, her non availability to take up the position due to her maternity leave again came up as the reason for her not being appointed.
- The complainant submits that her level of experience, her degree and additional qualifications, her involvement in management and the exceptional nature of the reference from her previous Principal teacher, are among factors which indicate that she was a highly suitable candidate for appointment. When added to her excellent performance at interview as commented on by the Chairperson at the end of the interview, this suggests that the reason for her non-appointment was entirely other than her performance at interview. In addition, as she was offered a position as teacher in the school by the Chairperson following the expiry of her maternity leave, this is confirmation that the delay in taking up the position due to her maternity leave which was unfairly taken into account by the respondents resulted in her non-appointment to the post.
- The complainant refers to Dekker v. Stichting-Vormingscentrum (Case C-177/88 ECR 1990 I-3491) which stated in a similar case that it is not important that there are no male applicants for a position. It is submitted in addition that a male candidate would not have been treated in the same manner in which the complainant was treated and that the questioning and observations as to her pregnancy and maternity leave and the linking of the non appointment to pregnancy/maternity leave amounted to less favourable treatment on the gender ground and clearly breaches the terms of the 1998 Act.
- 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 out in Appendix D to the Rules and Constitution of Boards of Appointment of National Schools, a document issued by the Department. The Department’s procedures refer to advertisements, composition of selection boards, assessment of applicants, criteria, conduct of interviews and notification to applicants. Particular attention is drawn to the section of the appointments procedure referring to interviews. The procedures specify, inter alia, that “all questions at interview shall relate to the requirements of the particular post and of the Rules for National Schools”, and that “no question shall be asked nor information sought from a candidate which might be construed as being discriminatory on grounds of sex or marital status.” The complainant maintains that the Department of Education and Science is a joint employer of teachers in National Schools and must also bear responsibility for the discriminatory treatment which she suffered. In particular, she submits that the Department ought to have advised schools more strongly in its prescribed appointment procedures and in its Circulars to schools that it is inappropriate for questions related to the pregnancy or maternity leave of a candidate to be raised at interview or at any stage of the selection process.
- SUMMARY OF THE FIRST NAMED RESPONDENT’S SUBMISSION
- The first named respondent denies that the complainant was discriminated against on the gender ground by virtue of the fact that she was not appointed to the permanent teaching post. The selection board appointed to interview candidates comprised the Chairperson of the Board of Management, the Principal of the school and the Principal of another school. The selection board drew up the selection criteria which were (a) professional qualifications, (b) teaching experience, (c) competence and confidence to teach Irish up to sixth standard, (d) knowledge of the curriculum and its guidelines in Southern Ireland and (e) awareness of the various roles of the class teacher vis a vis parents, special needs, IT, planning and multi-class situations. Marks out of 20 were given for each of the above criteria.
- Three applications were received and all three applicants were called for interview. The applicants for the post were assessed by the selection board according to the criteria selected. The outcome of the process was that the complainant was ranked second in the order of preference as decided by the selection board. The Chairperson of the Board of Management called to the complainant’s home to return her CV and references. On that occasion, he emphasised to her that the successful candidate was appointed because she had fulfilled the criteria as set out for the position. It is denied that he said to the complainant that she was not appointed because of her unavailability and also denied that she was offered a future position as no such vacancy was due to occur and no such vacancy has arisen to date.
- When assessing the complainant for the post, the selection board was impressed with the complainant’s CV and with her teaching experience. However, they also noted the complainant’s lack of qualifications to teach Irish. The respondent refers to the marking sheet where it can be noted that the claimant was marked 3 out of 20 in relation to her competence and confidence to teach Irish up to sixth class standard. The successful candidate was marked 11 out of 20 and the third placed candidate 1 out of 20. The respondent also refers to the interview notes where it was noted that complainant stated that she only had limited knowledge of the Irish language but was willing to attend courses to improve it. The complainant’s lack of qualifications to teach Irish to mainstream classes, her acknowledgement at the interview that she had very limited Irish and would not feel competent or confident to teach Irish to a mainstream class are three important factors which influenced the board’s decision that she was not the most suitable candidate for the appointment.
- Furthermore, when asked about the guidelines of the revised curriculum for Irish national schools, the complainant stated clearly that she had little or no knowledge of the various subject areas, the contents of the guidelines and the methodologies contained therein. The complainant expressed the opinion at interview that she hoped they would be similar to the curriculum in Northern Ireland schools. The respondent refers to paragraph 3(d) of the notes which state that the complainant had “very limited knowledge of the revised curriculum.” The respondent also refers to the marking sheet where it will be noted that the complainant was marked 7 out of 20 on this criterion as opposed to 14 out of 20 for the successful candidate and 4 out of 20 for the other unsuccessful candidate. This was another decisive contributory factor in the selection board’s decision that the complainant was not the most suitable candidate for the appointment.
- It should also be noted that the successful candidate when answering the two questions in relation to the teaching of Irish and the revised curriculum stated that she was attending Irish classes twice weekly with a view to sitting the examination for the Scrudu le hAghaidh Cailiochta sa Ghaeilge. The successful candidate stated that she felt competent and confident in teaching Irish in a mainstream class as she had experience of doing so in her teaching career to date. The successful candidate also displayed a great awareness of the content of the revised guidelines for Irish, the methodologies contained therein and of a number of programmes available to schools to assist them with teaching Irish. The successful candidate was also very knowledgeable of the content of the revised curriculum in all subject areas.
- It should be noted that none of the three candidates at the time of the interview possessed at that time professional qualifications that would be acceptable to the Department of Education and Science to recognise them as permanent primary teachers other than in the categories of special schools and classes. Therefore, the successful candidate for appointment would have to pass the Scrudu exam to achieve full recognition from the Department as a primary school teacher.
- In her application for the post, the complainant informed the respondent by letter that she was going on maternity leave with effect from 2 December 2002. The complainant also alleged that she was asked at interview when her maternity leave would end which the respondent denies. The selection board was aware when the complainant’s maternity leave would end as all three members of the selection board were experienced in the area of education and had dealt with maternity issues before. The complainant was asked (as were the other two candidates) the following question “If you are successful in your application when would you be available to take up your appointment?.” The respondent refers to the list of questions asked at interview by each member of the selection board. The complainant’s answer to that question is noted as follows: the complainant “restated that she was going on maternity leave and would have to make enquiries from her present employers regarding the date from which she would be obliged to give them notice.” The complainant asked if this presented a problem and the Chairperson of the selection board stated clearly that this would not present any difficulty as a substitute teacher would be employed in the intervening period should it arise. Neither the date of 7 April 2003 as claimed by the complainant in her submission or any reference to the difficulty in getting substitute teachers was ever mentioned during the interview.
- The question as to availability to take up the appointment had no bearing whatsoever on the outcome of the interview as can be seen from the selection criteria and the marking sheets. It should be noted that when the successful candidate was asked the same question, she replied that she was unable to take up duty immediately as she was committed to completing a maternity leave substitution which she had started and accordingly could give no guarantee as to her availability. The third candidate with similar teaching qualifications stated that she was available to commence work immediately. The respondent submits that this comprehensively rebuts the complainant’s submission on this point.
- It is accepted that the Chairperson met the complainant at a wedding reception on 7 November 2002 and that in the course of a long conversation about her moving from County Fermanagh to County Cavan, the topic of vacancies in the school arose. The Chairperson did mention to her that a vacancy was about to occur, however, he denies that he invited her to apply for the position.
- The respondent submits that the interview was not conducted in a discriminatory manner, there were no significant reasons why the complainant should have been selected and that the selection board had ample credible and non discriminatory reasons for not selecting the complainant. Whilst the respondent accepts that the complainant was a good candidate, the respondent submits that the complainant was not the best candidate for the position. The records show that the complainant was marked significantly lower than the successful candidate in relation to two of the five criteria for the appointment. In relation to the complainant’s criticism of the selection board for questioning her as to her availability, it is submitted on behalf of the respondent that the same non discriminatory question as to availability was asked of all three candidates. The respondent submits that the complainant has failed to show that she was subjected to any discriminatory treatment in relation to the interview or selection process carried out by the respondent.
- SUMMARY OF THE SECOND NAMED RESPONDENT’S WRITTEN SUBMISSION
- The second named respondent submits that the Board of Management of a school is primarily responsible for recruitment, selection, appointment, discipline and dismissal of teachers and, in carrying out those functions, the Board does not act as agent of the Minister. The Minister’s 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.
- The Department’s position is that the Minister is not a teacher’s employer. Each teacher is employed under a contract of employment with the Board of Management and the Minister is not a party to the contract and is accordingly not properly a party to this complaint.
- CONCLUSIONS OF THE EQUALITY OFFICER
- In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to an appointment to a teaching post. She alleges that the reason that she was not successful was due to her pregnancy and impending maternity leave. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties. Whilst the complainant has also named the Department of Education and Science as a respondent in this case, in accordance with my decision in Bleach v. Our Lady Immaculate Senior School & anor , I consider that her prospective employer was the Board of Management of the school (the first named respondent).
- Section 6(1) of the Employment Equality Act, 1998 provides that:
“Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), The European Court of Justice in a case that dealt specifically with a situation of a woman who was not appointed to a job because she was pregnant and would not therefore be available to start work when she was needed established a number of years ago that pregnancy related discrimination was direct discrimination on the grounds of sex. It stated:
“…. only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex. A refusal of employment on account of the financial consequences of absence due to pregnancy must be regarded as based, essentially, on the fact of pregnancy. ”
Subsequently in Webb the Court held in a case which concerned the dismissal of a pregnant worker that:
“….., dismissal of a pregnant woman recruited for an indefinite period cannot be justified on grounds relating to her inability to fulfil a fundamental condition of her employment contract. The availability of an employee is necessarily, for the employer a precondition for the proper performance of the employment contract. However, the protection afforded by Community law to a woman during pregnancy and after childbirth cannot be dependent on whether her presence at work during maternity is essential to the proper functioning of the undertaking in which she is employed.”
Caselaw on establishing a prima facie case of discrimination - Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex was transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001. Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC provides:
“Where in any proceedings facts are established by or on behalf of a person from 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 to the contrary.”
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell considered Article 4 of the Directive and the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only 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, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed. - More recently, the Labour Court has stated in a case concerning discrimination on the gender ground:“The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in Southern Health Board v Dr. Teresa Mitchell.
It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment.”
Issue whether the burden of proof is satisfied in this case - There were seven applicants for the post of permanent primary teacher and candidates were shortlisted for interview. The Principal and the Chairperson shortlisted the candidates. Four candidates had no qualifications or for example, qualifications from America and could not be recognised as permanent teachers in a provisional capacity by the Department of Education and Science. The interview board consisted of the Principal, the Chairperson of the Board of Management and a Principal of another school. The Chairperson of the Board of Management asked the third person to sit on the interview board as she is on a list of people available for interviewing candidates. The five assessment criteria were drawn up on the day of the interview after the interview board had access to the candidates’ CV’s. The assessment criteria consisted of (i) professional qualifications, (ii) teaching experience, (iii) competence and confidence to teach Irish to sixth standard, (iv) knowledge of the curriculum and its guidelines in Southern Ireland and (v) awareness of the various roles of the class teacher vis a vis parents, special needs, IT, planning and multi-class situations. At the hearing, the respondent submitted that candidates were assessed on how they performed during the interview plus their CV’s. The candidates were not marked individually by the assessors and were marked by consensus after each interview. Accordingly, there is only one marking sheet.
- Marking of candidates
The complainant received slightly greater marks than the successful candidate under the heading of qualifications. The complainant’s qualifications were a B.Ed Degree with Computers & Special Needs and a Diploma in Education Management. The successful candidate’s qualifications were a B.A. Degree in Modern and Contemporary History and a Post Graduate Certificate in Education. The complainant received a mark of 15 for qualifications whereas the successful candidate received a mark of 13. The complainant received considerably more marks (18 marks) than the successful candidate (10 marks) for the criterion of experience. She received the same marks as the successful candidate under the fifth heading which covered the areas of the roles of the teacher vis a vis parents, special needs, I.T., planning and teaching multi-classes. At the hearing, it was explained that the school is a three teacher school with high numbers and that a teacher would be required to teach three classes. There was therefore the requirement of experience in a multi class situation given the nature of the school. The third person on the interview board gave evidence that she asked a question in relation to this issue and that the successful candidate had some experience (4 months) teaching in a multi-class situation. I note that there were a number of aspects to the fifth area of assessment and it is questionable why the issue of multi classes was not assessed as one criterion in the light of the evidence of the respondent of the importance of multi-class experience to the needs of the school. Given that the respondent submits that this matter was important and that the respondent submits that the complainant did not have experience in a multi-class situation, it is surprising that the marks awarded to the complainant for this criterion were the same as those awarded to the successful candidate. - The complainant scored significantly less marks than the successful candidate under the heading of ‘competence and confidence to teach Irish to sixth standard’ (3 and l1 marks respectively) and also scored less marks under the heading ‘knowledge of the curriculum and its guidelines in Southern Ireland’ (7 and 11 marks respectively). The Principal’s summary of the complainant’s response to these questions is recorded as follows:
“Very limited knowledge of the revised curriculum” and “Stated that she only had limited knowledge of the Irish language but was willing to attend courses to improve this.” The notes recorded by the Chairperson are similar in relation to the complainant’s answers to these two questions. The notes of the third person on the interview board do not refer to the answers to these two questions. The complainant vehemently denies that she responded as indicated in the notes. It must be noted that all three candidates were in the same position in relation to teaching the Irish language vis a vis the Department of Education in that all three could only receive provisional recognition as permanent primary teachers pending their passing of the Scrudu le haghaidh Cailiocht sa Ghaeilge. The complainant and the successful candidate both had an A-level in Irish (Grade D and C respectively) and the successful candidate had commenced classes to pass the Scrudu. The complainant also scored significantly less in relation to the criterion of ‘Knowledge of the Curriculum and its guidelines in Southern Ireland’ (7 and 14 marks respectively). Again, the complainant submits that the notes of her answers do not reflect what transpired at interview. - The third person on the interview board when asked at the hearing the factors she took into account when agreeing the consensus mark said that she was guided by the Principal teacher in that he made clear what he wanted and that teaching Irish, the Curriculum and experience of teaching multi-classes were important. The Chairperson of the interview board said that he was guided by the Principal and the third person who was also a Principal of a school. The factors he considered were that he was aware of the complainant saying that she was not confident in Irish and was not aware of what was required in the South regarding the curriculum. The Principal stated at the hearing that prior to the interviews, he rang the Principals of the schools where the applicants were teaching as he wanted to check regarding the lack of experience in multi-classes and Irish. He submitted that he already had the references and did not ring in relation to them. The mark awarded to the complainant compared to the successful candidate under the fifth criterion referred to at paragraph 6.6 (both received 17 out of 20) is not indicative that the issue of multi classes was such an issue in respect of her and I note also that it was but part of one criterion. I consider that the action of the Principal in contacting the Principals regarding matters unrelated to the references was unfair to all candidates and may have been more unfair to some candidates than others depending on the nature of the discussion and the information received by the Principal. I cannot therefore accept that the result of the interview was based solely on the candidates’ performance at interview and their CV’s. Furthermore, the action taken could have allowed for the operation of subjective prejudices which may have prejudiced the selection process. Additionally, the two other members of the selection stated that they were guided by the Principal in the marking of candidates and in my view, given the operation of a marking system by consensus, this could have allowed one member of the interview board to considerably influence the outcome of the selection process. Furthermore, the consensus marking of candidates lacked transparency and I find that in totality an issue arises in relation to the marking of the candidates.
- Assessment criteria
I note that the Department of Education and Science Handbook in relation to the Constitution of Boards and Rules of Procedure (Appendix D thereof ) states that in the selection for appointment to a permanent teaching post, the “following factors shall be taken into account, …….. though not exclusively nor necessarily in this order:
professional qualifications
teaching experience and reports on competence
other relevant experience
references
I note also that the Department of Education Guidelines on the appointment of teachers (Updated Version – April 2002) indicate at section 14 (page 7) that the same factors should be taken into account. In the case in issue, references were not considered as a criterion for assessment and I note that the complainant had received good references from the Chairperson of the Board of Management of the school in which she was teaching and from the Principal of the school. Additionally, the selection criteria were drawn up after the interview board had access to the candidates’ CV’s which again is contrary to the Board of Management Handbook which provides at Appendix D in relation to the appointment of teachers that “The Selection Board shall meet as soon as is practicable and shall establish criteria for the assessment of the applications, having regard to the Rules for National Schools and the requirements of the particular post.” It continues “A further meeting of the Selection Board is necessary after receipt of the application forms to determine those applicants to be called for interview. Each applicant called for interview shall be supplied with details of the established criteria for the post.” - Question as to availability
The complainant in her letter of application stated that she was going on maternity leave with effect from 2 December 2002. At the hearing, she stated that the reason she made the statement was that she wanted the employer to know. In any case, it would have been obvious at interview as the complainant was in the latter stages of pregnancy. I do not accept the respondent’s contention that if there had been discrimination on the gender ground, the complainant would not have been called for interview as she was one of three applicants from a total of seven who could have received provisional recognition from the Department of Education and Science pending her passing of the Irish exam. The other four other applicants could not have received provisional recognition and were not called for interview. - It is not in dispute that a question was asked at interview to all candidates in relation to their availability to take up the post if appointed (though it is in dispute as to who asked the question). The respondent denies that the responses of the candidates were considered in the marking of candidates. The complainant submits that a follow up question was asked in relation to whether maternity leave would form part of the complainant’s notice period and that reference was made during the interview to another school where a teacher was unable to take up her appointment for three months due to the notice period. The respondent denies the complainant’s allegations regarding the sequence of events following the question regarding availability. At the hearing, the respondent submitted that a question is always asked in relation to availability as schools like to know. The complainant was going on maternity leave a few days after the interview and if she had been appointed, it would have necessitated the appointment of a substitute teacher for the duration of her maternity leave. The complainant further submitted that when the Chairperson phoned to tell her that she was not successful and when he called to her house to return her CV, he told her she was not appointed due to her unavailability. The Chairperson denies these allegations. The respondent submitted that when the successful candidate was asked the question in relation to availability, she replied that she was unable to take up duty immediately as she was committed to completing a maternity leave substitution. However, I note that the successful candidate following her acceptance of the position by letter on 5 December 2002 took up appointment on 19 December 2002
- Discrimination can occur not only by treating someone in the same position as another less favourably. The European Court of Justice has stated:
“It is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rules to different situations.”
Discrimination can therefore occur by treating two people who are not in the same position in the same manner. The complainant was clearly not in the same position in relation to availability as the other two candidates and a question in relation to availability would clearly have had more impact on her. - I also refer to section 22 of the Employment Equality Act which prohibits indirect discrimination. Section 22(1) as amended by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (S.I. No. 337 of 2001) provides that where a provision (whether in the nature of a requirement, practice or otherwise) relating to employment applies to males and females, is such that the proportion of persons who are disadvantaged by the provision is substantially higher in those of one particular sex, is not appropriate and necessary and cannot be justified by objective factors unrelated to sex shall be regarded as indirect discrimination contrary to section 8 of the Act. In relation to indirect discrimination, I refer to the Labour Court case of Sheils O’ Donnell v. The Board of Management of St. Baithin’s N.S. and St. Aengus N.S. which considered the issue of a question on flexibility being put to candidates at interview. The Court held:
“…., the Court considers that such a question, put to the claimant, was indirectly discriminatory, in that more women than men would be generally adversely affected by a requirement to be flexible due to family commitments.” - The respondent has denied that availability was a factor that was considered in the appointment of candidates. However, a question was asked in relation to the issue and in those circumstances, a question arises as to why it was asked. The only answer provided by the respondent in relation to why it was asked was that the question is always asked as schools like to know. In this particular situation, the employer knew in advance of the interviews that the complainant was pregnant. Pregnant women would be adversely affected by the practice of asking such a question as issues would arise in relation to their immediate availability or ongoing availability in employment. I must therefore proceed to consider the issue of whether the practice is appropriate and necessary and can be objectively justified. In this case, the respondent did not submit any particular reason as to why they needed to know and I do not consider that the respondent’s response that schools like to know is objective justification for the practice of asking the question. Furthermore, I do not consider that any difficulty in appointing substitute teachers objectively justifies the practice and I find that the question was indirectly discriminatory on the gender ground. This finding should not be interpreted as indicating that in all situations, a question in relation to availability must never be asked.
- Conduct of the interviews
The complainant also raised the issue of the conduct of the interviews vis a vis the various candidates. The issue of the conduct of interviews and whether the questions asked by the Chairman of an interview board related to the skills that he had taken responsibility for were considered by the Labour Court in an age discrimination case. It stated:
“The Court has given careful consideration to the evidence in relation to the conduct of the interviews. There was, to say the least, a sharp difference of recollection and perception as to how the interviews were conducted between the complainants who gave evidence on the one hand, and the members of the interview board on the other. The Court believes that much of the criticism of the process which was voiced by the complainants may have been influenced by their understandable disappointment at the result. For this reason the Court believes that it should approach this evidence with caution.” - In the case of the Southern Health Board v. Dr. Teresa Mitchell , the Labour Court referred to the Gleeson case and stated: “In that case, the Court found five instances of unfairness in the selection process, the cumulative effect of which resulted in a prima facie finding of discrimination.” More recently, the Labour Court in the case of John Gillen v. The Department of Health and Children stated that in cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw inferences of age discrimination. It referred, inter alia, to the following factors creating an inference of discrimination (i) a lack of transparency, or unexplained procedural unfairness and (ii) a mismatch between formal selection criteria and those apparently applied in practice. It also considered as persuasive, discriminatory questions asked at interview.
- In a subsequent Labour Court case which considered discrimination on the gender and age grounds, the Court stated:
“In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or age ground. ……. What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman (Wallace v. South Eastern Education and Library Board [1980] IRLR 193). It can also arise from an unexplained procedural unfairness in the selection process.”
The Court in that case went on to state:
“As the Court has been unable to find any material unfairness or departure from good practice in the selection process, there is no basis upon which it could conclude that the decision of the Board not to appoint the complainant was irrational.”
More recently, the Labour Court stated in a case concerning gender discrimination that a prima facie case of discrimination had been made out on the basis of the complainant’s superior qualifications and that the selection process used did not conform to the standard of best practice. It held: “Specifically, the use of assessments outside the interviews was lacking in transparency and Court cannot discount the possibility that subjective considerations might have entered the process. The failure of the respondent to retain interview notes constitutes a further departure from best practice which, combined with the other elements of the case, is supportive of the conclusion that a prima facie case of discrimination has been made out.” - 6.18 In the case in issue,
(i) there was a failure to follow the criteria for assessment as detailed in the Department of Education and Science Constitution of Boards and Rules of Procedure and also the Department of Education and Science guidelines on appointments (Updated Version – April 2002) and references were excluded from the marking system;
(ii) the selection criteria were drawn up after the interview board had access to the candidates’ CV’s;
(iii) the Principal of the school contacted the Principals of the schools in which the candidates were teaching to verify two issues unconnected with references. Accordingly, the outcome of the selection process was not based solely on the candidates’ CV’s and their performance at interview and included information not gained at interview and not disclosed to the candidates and may have included the operation of subjective prejudices;
(iv) candidates were not marked individually by the interview board members and were marked by consensus thereby lacking transparency;
(v) an indirectly discriminatory question was asked at interview. - On the basis of the factors referred to above, I am satisfied that the selection process fell short of the standards of transparency, objectivity, fairness and good practice that could reasonably be expected in the circumstances. I find, therefore, that the complainant has established a prima facie case of discrimination on the gender ground. I must now consider whether the first named respondent can rebut the complainant’s claim of discrimination.
- The respondent in its written submission stated that the “claimant’s lack of qualifications to teach the Irish language to mainstream classes, her acknowledgement at the interview that she had very limited Irish and would not feel competent or confident teaching Irish to a mainstream class are three important factors which influenced the board’s decision.” The complainant disputes the respondent’s notes of her answers in relation to the question about confidence to teach Irish. The respondent submitted in relation to the question about the revised curriculum that the complainant stated “clearly that she had little or no knowledge of the various subject areas, the contents of the guidelines and the methodologies contained therein.” The complainant also disputes the notes of her answers to this question. At the interview, the respondent also submitted that the experience of the candidates teaching multi classes was an important factor in the decision to appoint the successful candidate. In relation to the competency of the candidates to teach Irish, I note that the complainant’s qualifications vis a vis the Department of Education and Science were the same as the successful candidate’s qualifications as both could only be recognised as permanent teachers in a provisional capacity pending their passing the Irish exam. I have already referred at paragraph 6.8 above to the fact that the importance of teaching multi classes in the assessment process is not borne out by either the inclusion of that issue as part of one criterion or in the actual marking of the complainant and the successful candidate under that criterion as both received the same marks. I find the evidence of the respondent in relation to two of the reasons for the appointment of the successful candidate unconvincing and on the balance of probabilities, I find that the respondent has failed to rebut the complainant’s claim of discrimination on the gender ground.
- Supplementary
It may have been reasonable for the complainant to believe that she should have been the successful candidate in the light of her qualifications, experience and references as set out at paragraph 3.5 above. However, the Labour Court has stated:
“It is not for this Court to substitute its own views as to whether the appellant was a suitable candidate for the position. It is for the appellant to establish facts from which it may be presumed that the decision was reached on the basis of discrimination……”
More recently again, the Court stated:
“The Court accepts that it is not the responsibility of the Equality Officer or the Court to decide who is the most meritorious candidate for a position.”
It went on to hold that the function of the Court is to determine whether discriminatory grounds influenced the decision of the selection board. Accordingly, it is not my function to supersede the choice of candidate made by the respondent. My remit is to determine whether the selection process was conducted in a manner which was free from any form of unlawful discrimination.
- DECISION
- On the basis of the foregoing, I find that the first named respondent discriminated against the complainant on the basis of her gender.
- I hereby order that the first named respondent:
(i) pay the complainant €10,000 compensation in respect of the acts of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income).
Mary Rogerson
Equality Officer
9 March 2005