DEC-E2005-022 Full Case Report

Ms Colleen Harrington (Represented by the Irish National Teachers’ Organisation) vs Board of Management, Scoil Chríost Rí (Represented by Arthur O’Hagan, Solicitors) and Department of Education and Science

DISPUTE
1. The dispute concerns a complaint that (1) the Board of Management, Scoil Chríost Rí and (2) the Department of Education and Science discriminated against the complainant on the grounds of her gender contrary to the provisions of the Employment Equality Acts, 1998 and 2004 when she was not permitted to withdraw her application for a career break on learning that she was pregnant.
BACKGROUND
1. The complainant is employed as a teacher at the respondent school. She believes that she was discriminated against on the grounds of her gender when the first named respondent refused to allow her to withdraw her application for a career break when she became pregnant.
2. The Irish National Teachers Organisation referred a complaint to the Director of the Equality Tribunal on behalf of the complainant on 20th January, 2003. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to an Equality Officer, for investigation, hearing and decision on 16th January, 2003 and for the exercise of other relevant functions of the Director under Part VII of the Act. On receipt of the submission on behalf of the complainant, the Equality Officer to whom the complaint had been assigned, concerned at a possible perception of conflict of interest, requested that the case be delegated to another Equality Officer and the Director re-delegated the case to Raymund Walsh, Equality Officer on 30th July, 2003. While the second named respondent had set out its position in correspondence at an early stage, a submission on behalf of the first named respondent was not received until 8th July, 2004. A hearing of the complaint was held on 13th October, 2004. Further correspondence in the matter ensued up until 21st December, 2004.
SUMMARY OF THE COMPLAINANT’S SUBMISSION
1. The complainant has been employed at Scoil Chríost Rí in Limerick (referred to here as the School) since 1993 and states that she has an excellent record of attendance at teaching at the school. The complainant applied for a career break on 18th May, 2002 in accordance with Department of Education and Science Circular 6/01 concerning the rules applicable to career breaks for primary teachers and her application was duly approved by the School. The complainant states that she informed the Principal at the time that she hoped to become pregnant in the near future and that if she did become pregnant she hoped to postpone the career break. The complainant became aware in July 2002 that she was pregnant and after receiving medical confirmation of her pregnancy by way of a scan on 26th July, she notified the school Principal that she was pregnant and that she wished to withdraw her application for a career break. The complainant states that the Principal did not appear open to her request and advised her to contact the Chairperson of the Board of Management (referred to here as the Chairperson). When she did so, he advised her to put her request in writing and suggested that it might be difficult to get a replacement for maternity leave purposes.
2. The complainant states that she wrote to the Board of Management outlining her request to postpone her career break and indicated that she proposed to take unpaid leave from the beginning of the school year up to the commencement of maternity leave which would make it easier for the school to find a temporary replacement for the school year and minimise the disruption to her class. The complainant received a letter from the Chairperson on 8th August, 2002 stating “considering the difficulties which would ensue under this change of situation” her request to withdraw her career break application could not be accommodated. The letter stated that an advertisement had been placed in a national newspaper seeking a replacement for the duration of her intended career break, 62 applications had been received and an interview board had been set up. The complainant points out that the selection board for such an appointment comprises the Chairperson, the Principal and an independent assessor and required little by way of ‘setting up’.
3. The complainant states that she rang both the Chairperson and the Principal on 12th August, 2002 seeking to appeal the Board of Management decision but neither were prepared to discuss the matter. She subsequently wrote to the Board of Management on 15th August, 2002 appealing the decision setting out the financial implications for her and the fact that she would use up one year of her career break entitlement. The Board met on 16th August to consider the matter and wrote to the complainant on 17th August stating that its original decision had been upheld. The complainant contends that the sole reason her request to defer her career break was turned down
  was due to her pregnancy and entitlement to maternity leave. As regards measures already in train to find a replacement for her, the complainant states that the advertisement had only been placed three days before she requested a deferral and the closing date for applications had not been reached and no candidate had been interviewed, much less appointed.
4. The complainant refers to the role of the second named respondent i.e. the Department of Education and Science (the Department) as that of approving of Board of Management decisions in relation to career breaks. The complainant states that she phoned the Department in May 2002 and was informed that she could cancel a career break application should she become pregnant but should do so before mid August in order to facilitate salary arrangements. She confirmed this position again with the Department on two occasions in late July or August of 2002. In a supplementary submission made after the hearing, the INTO, on behalf of the complainant, further outlined its position with regard to the Department's role. The INTO argues that the Department is a party to the contract of employment between the Board and the teacher and refers to the Employment Appeals Tribunal in Cecilia McGovern v the Department of Education and Science (UD554/1989) and the Labour Court in the Employment Equality Agency v the Department of Education (DEP 3/1987). Although both cases referred to were appealed and settled, the INTO considers them relevant. The INTO also refers to the Labour Court in Shiels O'Donnell v the Board of Management, St Blaithín's NS and the Department of Education and Science (DEE 025, 1 July, 2002).
SUMMARY OF FIRST NAMED RESPONDENT'S CASE
1. The School refers to the provisions of Circular 6/01 with regard to the rules applicable to the grant of career breaks and in particular the time frame within which the application and approval process should take place in order for a replacement to be recruited i.e. application to be made by the 1st May of the relevant year and decision by 1st June which would in turn be conveyed to the Department by 10th June. The School states that the circular makes no provision for the revocation or postponement of a career break once sanctioned. The School states that when the complainant sought a postponement of her career break at the end of July, 2002, an advertisement for a temporary replacement had already been placed in a national newspaper and the school was closed for the summer holidays. An interview panel had also been set up.
2. The Board held an extraordinary general meeting during the school holidays on 7th August, 2002 to consider the complainant’s request and decided that the request had been received too late and that the replacement procedure was too far advanced to defer the career break as requested. A further meeting of the Board was held on 16th August, 2002 to consider the complainant’s further representations however the original refusal was upheld. The School denies the complainant’s suggestion that the Principal had been put on notice from the outset that should the complainant become pregnant that she would wish to defer her application for a career break and states that at no point was it communicated to the Principal that the Department had advised the complainant that the Department would have no difficulty with a request to defer a career break.
3. The School states that decisions regarding career break applications fall to be made on an annual basis and that there is no provision in the rules for postponement. A fresh application should be made before May 1st of the year in question. The School states that the decision in the complainant’s case was not influenced by her gender or the fact that she would be seeking to exercise her statutory maternity rights. The School accepts that on a previous occasion in August, 2001 the Board convened during the summer holidays to consider an application by the complainant for parental leave which it duly approved. However the School states that the difference with career break applications is that the school is obliged to advertise and fill a temporary contract position for a fully qualified teacher.
4. The School states that the onus is on the complainant to demonstrate that a male would have been treated differently in similar circumstances and states that there is no evidence that this is the case. Referring to Southern Health Board v Mitchell [2001] ELR 201, the School states that the complainant has failed to adduce prima facie evidence of discrimination based on her gender or pregnancy. Referring to Mulcahy v Minister for Justice, Equality and Law Reform and Waterford Leader Partnership Ltd [2002] ELR 12, the School in its submission argues "The mere coincidence of a refusal to revoke an application for a career break with the fact that the claimant was pregnant is not sufficient to raise an inference of discrimination. Something more is required."
SUMMARY OF SECOND NAMED RESPONDENT'S CASE
1. The Department states that 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 authorisation and management of career breaks is a matter for the Board of Management of a school. The Department states that Boards of Management should have a policy for granting career breaks which should take due regard of the educational needs of the school and the possible negative effects of permitting several career breaks from the same school at the same time. With regard to requests for unpaid leave, the Department states that it considers such requests on a case by case basis and that it is unlikely that it would have sanctioned unpaid leave in the circumstances pertaining in this case.
2. The Department states that a teacher is employed under a contract of employment with the Board of Management and the Minister is not party to the contract and is accordingly not properly a party to this complaint. The Department states that authority for this position can be found in statute and case law and refers to Sections 24(3) and 14(1) of the Education Act, 1998 and to the High Court judgement of Mr Justice Kearns in Tobin v Minister for Education and Science (21 March, 2000) in this regard. The Department also refers to recent Equality Officer decisions which support this position i.e. Mc Ginn v Board of Management, St Anthony's Boys National School and the Department of Education and Science (DEC-E-2004-032) and Delaney v Board of Management, Drumshanbo Central National School and the Department of Education and Science (DEC-E-2004-067).
CONCLUSIONS OF THE EQUALITY OFFICER
1. The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her gender in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to Section 8 of the Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. It is well established that discrimination related to pregnancy constitutes discrimination on the gender ground within the meaning of the Equal Treatment Directive 76/207/EEC and the Employment Equality Act, 1998. The Equality Officer in Mc Kenna and the North Western Health Board (DEC-E-2001-025) refers to the relevant caselaw.
2. I am satisfied in the first instance that the complainant has adduced no evidence that the second named respondent i.e. the Department, was a party to the School's decision to turn down the complainant's request to defer her career break application. There was no evidence presented of any discriminatory rules or procedures in the Department's circular concerning career breaks and therefore I find no evidence of discriminatory treatment by the Department. In the circumstances, the extent of the Department's role as employer as set out by the INTO is not immediately relevant. In any event the recent caselaw referred to at 5.2 above would be persuasive in leading to a conclusion that the complainant was, for all practical purposes, an employee of the School. It is nevertheless of note that the Department states that had the career break been deferred as requested and an application made for unpaid leave for a shorter period as proposed by the complainant, the Department would have been unlikely to approve such a request. If such a refusal were to be the subject of a complaint before an Equality Officer then clearly the Department’s role in controlling a teacher’s terms and conditions of employment would be open to examination.
3. The main issue to be addressed here is whether or not the School's decision to refuse the deferral of the complainant's career break arose from the fact the complainant had declared her pregnancy and would, in due course, be seeking to avail of statutory maternity leave. The School has given its explanation that the process of finding her replacement was at 'an advanced stage' i.e. an advertisement had been placed in a national newspaper, when the complainant sought a deferral. I am of the opinion that the process was not at an advanced stage when the complainant phoned the Principal on 26th July to say she was pregnant and wished to postpone her career break. I put a hypothetical question to the School at the hearing when I asked what would happen if a teacher had applied for a career break to look after an elderly relative and if the relative were to die three days after an advertisement for a replacement had been placed in the newspapers and the teacher sought to cancel the career break. The School responded that the circumstances were different and that each case would be considered on its merits. It appeared clear to me, although the School appeared unwilling to say so, that in those circumstances the request would be granted and applicants for the temporary post would be informed accordingly. The circumstances were different in the present case because the School would still have had to find a replacement for the duration of the complainant's maternity leave while the complainant would be entitled to her statutory maternity pay. I am satisfied that these were the reasons for the refusal and that they stemmed directly from the complainant's pregnancy.
  
  Burden of Proof
  The respondent has argued that the onus is on the complainant to demonstrate that a male in similar circumstances, would have been treated differently. Pregnancy is a uniquely female condition and therefore a male comparator in similar circumstances doesn’t exist. The European Court of Justice in Dekker v Stichting Vormingscentrum Voor Jong Volwassen (VJV Centrum) Plus¹specifically rejected the need for a pregnant woman complaining of discriminatory treatment contrary to the Equal Treatment Directive (Directive 76/207) to measure her treatment against that which would have been afforded a male comparator. I am satisfied that the complainant has demonstrated prima facie that the reason for the School’s refusal to defer her career break was her pregnancy and that the burden of proof must shift to the respondent to show that there were reasons other than her pregnancy for the decision. I am satisfied that the first named respondent has failed to discharge that burden.
4. I note that the complainant seeks redress by way of
  - payment as if she had been granted maternity leave,
  - restoration of one year's entitlement to career break which she was obliged to use up and
  - financial compensation for the distress and loss suffered as a result of the discriminatory treatment
  I am of the view that the remedies sought are appropriate in this case and will order accordingly.
DECISION
1. On the basis of the foregoing, I find that the Board of Management, Scoil Chríost Rí d id discriminate against the complainant on the grounds of her gender in terms of Section 6(2) of the Employment Equality Acts, 1998 contrary to the provisions of Section 8 of that Act.
2. I order that the respondent
  1. pay to the complainant the amount of remuneration she would have received in respect of paid maternity leave had her career break application been deferred as requested
  2. pay to the complainant financial compensation in the amount of €10,000 for the distress suffered as a result of the discriminatory treatment and
  3. restore one year's career break entitlement to the complainant.
  The parties are referred to the provisions of Section 7 of the Finance Act, 2004 which exempts from income tax, certain awards unrelated to pay made on or after 4th February, 2004, in respect of the infringement of an employee’s statutory rights. The award at (b) above constitutes compensation for the effects of breach of the complainants’ rights under the 1998 Act including the distress caused and does not include any element of lost income.
3. On the basis of the foregoing, I find that the Department of Education and Science did not discriminate against the complainant on the grounds of her gender in terms of Section 6(2) of the Employment Equality Act, 1998 contrary to the provisions of Section 8 of that Act.

Raymund Walsh,
Equality Officer,
May 2005

¹ECJ Case C-177/88 [1990] E.C.R. I-3941