PEGLEY-SWANSON
-v-
GLÓR NA MÁRA NATIONAL SCHOOL
(REPRESENTED BY MS. SIOBHÁN PHELAN BL
INSTRUCTED BY ARTHUR O'HAGAN - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Sharon Pegley-Swanson that she was discriminated against by Glór na Mára National School on grounds of marital status, family status and age, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when she was not appointed to the position of Part-Time Resource Teacher following interview in June, 2003.
2. BACKGROUND
2.1 The complainant commenced employment as a Part-Time Resource Teacher with the respondent in January, 2002 and continued in that role until June, 2003. At that time she was required to interview for the post again and was unsuccessful. She contends that the respondent discriminated against her on grounds of marital status, family status and age contrary to the Employment Equality Act, 1998 in respect of the selection process. The respondent rejects the allegations stating that the post in question was a new one, which required a separate selection process and the appointee was the most suitable candidate who presented for interview.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 3 December, 2003. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Submissions were received from both parties and a Hearing of the complaint took place on 18 October, 2005. A number of points arose at the final hearing which required further clarification and this process concluded on 7 June, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced employment as a Part-Time Resource Teacher with the respondent in January, 2002 and continued working until June, 2002. She was on maternity leave from September, 2002 until February, 2003 during which time her post was filled by a substitute teacher. Following maternity leave the complainant returned to the position she had held previously and on the same number of teaching hours - 8 per week - although this subsequently increased to 15 hours per week by June, 2003. She adds that the substitute teacher who had covered for her while she was on maternity leave (Ms. X), was retained by the respondent as a temporary Full-Time Resource Teacher between February, 2003 and June, 2003. The complainant states that she found a notice in the staff room on 28 May, 2003 seeking applications for a Part-Time Resource Teacher post from September, 2003. She adds that she was of the view the respondent was advertising her post but applied anyway as there was no alternative. She states that she was also of the view that the post was hers for as long as the resource hours were sanctioned by the Department of Education and Science and she was never told that the position would terminate in June, 2003, although she accepted in the course of the Hearing that the post was temporary in nature.
3.2 The complainant states that she was shocked by this and immediately went to see the Principal. She adds the Principal told her "that she wanted to be fair" to both her and Ms. X although she was not sure what was meant by this comment. The complainant states that when she spoke to Ms. X about the position she (Ms. X) said she would not apply for the post. The complainant adds that two days later, at the school sports, the Principal informed her that she had spoken with a colleague who advised her "to open up the interviews and that is what the school would be doing". The complainant contends that this was a ploy to encourage Ms. X to submit her application as she (the complainant) was of the view that the interview was a formality - the respondent had already decided to appoint Ms. X to the post because she is young and single and did not have any children. She adds that the fact that the post was advertised so close to the end of the school year supports this assertion, when it had been sanctioned by the Department of Education and Science on 4 February, 2003.
3.3 The complainant states she attended for interview on 16 June, 2003 and the composition of the Panel was the same as the Panel which had interviewed her for the original post in December, 2001 when she was successful - the Principal, the Chairperson of the Board of Management (who chaired the Panel) and an external member who is a retired Principal. She further states that whilst she was not asked any question in the course of the interview which she considered to be of a discriminatory nature, she was asked by the Chairperson if she thought "the interview was fair" - a comment which she found odd at the time. The complainant submits that she was more experienced and better qualified than Ms. X for the post and contends that the she was deliberately not appointed because she was older than her and had family responsibilities. She argues that she was therefore treated less favourably on grounds of marital status, family status and age contrary to the Act.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her on grounds cited. It states that the complainant was appointed to the post of Part-Time Resource Teacher in a temporary capacity (5 hours per week) following interview in December, 2001. The Department of Education and Science subsequently approved additional resource teaching hours and by June, 2002 the complainant was providing eight hours' resource teaching at the school. These hours were available at the start of the next school year but the complainant was absent on maternity leave at that time and remained so until February, 2003. The respondent states it was necessary therefore to appoint a replacement for the duration of the complainant's absence on maternity leave, which was originally to end in December, 2002 but was extended to February 2003 at the complainant's request. The respondent advertised the post, Ms. X was successful following interview and was appointed on a part-time temporary basis. The respondent states that in February 2003 the Department of Education and Science approved a Full-Time Resource Teacher post due to the increased need for resource teaching elsewhere in the school. It adds that the Department requires all full-time posts to be advertised but as the vacancy arose in the middle of the academic year and some of the existing staff were interested in the post, it was decided by the Principal and the Chairperson of the Board of Management, following consultation with the staff, that the post would be filled on a temporary basis until June, 2003 in order to minimise disruption to the school - a process which is used frequently - and Ms. X was appointed to the post on that basis. In the course of the Hearing the Principal stated that the complainant was not offered these additional hours because she seemed happy to return to the hours she had previously been doing and did not raise it as an issue, although her hours were subsequently increased to 15 per week.
4.2 The respondent states that two of the students who had sanctioned hours for resource teaching which was covered by the complainant were due to leave the school in June, 2003 and the complainant was aware of this. It contends the complainant was therefore aware that her status was temporary in nature and was subject to the number of hours available and sanctioned by the Department of Education and Science and she had no guarantee that her employment was open ended, although it accepts that it never issued the complainant with a written contract of employment setting out these terms. There was however, still a need to cover a number of resource teaching hours in respect of other children on a temporary basis and the Principal and Chairperson decided, as there were at least two candidates interested in the hours (the complainant and Ms. X), that the fairest way to assign them was by way of interview rather than automatically offering them to the longest serving part-time person. The respondent accepts that it offered additional hours to the complainant previously but states that she was the only part-time resource teacher in the school at that time. It therefore advertised the new post in late May, 2003 and interviews were held in June of that year. The respondent states that the selection process was conducted in accordance with the procedures set out by the Department and the Catholic Primary Schools Management Association (CPSMA). Candidates were assessed by each of the three Interview Panel members over three pre-determined criteria and the most suitable candidate (Ms. X) was appointed to the post. It rejects the complainant's assertion that it deliberately delayed advertising the post so as to "give" Ms. X the post but could offer no explanation as to why the delay occurred.
4.3 The respondent accepts that the Chairperson made the comment attributed to her at interview but states that it was asked of all candidates and it was the Chairperson's way of seeing if the candidate wished to add anything. At the Hearing the Chairperson stated that she had heard another Interviewer use the phrase and she thought "it was different". She decided to use it at the end of the interviews to give candidates an opportunity to provide additional information. She accepted however, that she could have elicited the information in a different way. The respondent submits that the comment could not be construed as discriminatory. It adds that as soon as practicable after the interview the unsuccessful candidates (including the complainant) were given written confirmation of the position and no undue delay was created by the respondent in this regard. In summary, the respondent submits that the selection process was conducted in accordance with standard procedures, that it was open and transparent, that the Interview Panel selected the most suitable candidate have regard to the selection criteria and that the complainant has failed to establish a prima facie case of discrimination on the grounds cited.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not Glór na Mara National School discriminated against the complainant on grounds of marital status, family status and age in terms of section 6 of the Employment Equality Acts 1998 and contrary to section 8 of that Act, when it failed to appoint Ms. Pegley-Swanson to the post of Part-Time Resource Teacher following interview in June, 2003. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties.
5.2 At the time of the alleged incidents the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1)set out the out the procedural rules to be applied as regards the burden of proof to be discharged by the parties in claims of gender discrimination. This requires the complainant to establish, in the first instance, facts from which it can be inferred that he was treated less favourably on the basis of his gender. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. It is the well settled practice of both this Tribunal and the Labour Court to apply a procedural rule concerning the burden of proof in non-gender claims of discrimination which occurred before the coming into force of the Equality Act, 2004 (18 July, 2004) similar to that applied in gender based claims and I intend to adopt that approach in the instant case.
5.3 I note the complainant's assertion that her understanding of the situation was that her employment with the respondent was open ended and that she would remain employed by the respondent for so long as there were approved hours available. This assumption would be reasonable given that the respondent never clarified her status in writing to her at any time, although I note the complainant's comments at the Hearing that she was aware the position was temporary and part-time in nature and I find it difficult to accept her assertion in the circumstances. The respondent furnished correspondence between it and the Department of Education and Science about the Full-Time Resource Teacher from February, 2003 and I am satisfied that the manner in which the respondent filled this post in a temporary capacity (by appointing Ms. X) between February, 2003 and June, 2003 was fair and reasonable in the circumstances - I note that the complainant did not assert that this decision constituted less favourable treatment of her. The respondent is unable to offer any real explanation as to why it did not advertise the post until end of May, 2003. I further note the respondent's statement that the Principal and the Chairperson of the Board of Management decided the fairest way to assign the hours (given they were aware that at the complainant and Ms. X were interested in securing them) was to hold interviews and I accept this to be the case. I note in addition to the aforementioned that a third internal candidate and one external candidate (the vacancy was advertised in local and national newspapers) were interviewed for the post. On balance therefore, I cannot accept the complainant's proposition that the delay was a deliberate attempt on the respondent's part to appoint Ms. X to the post. In addition, I do not consider that the complainant was disadvantaged in any way by the decision of the respondent on this issue as she was made aware of the selection process at the same time as the other candidates.
5.4 I have examined the documentation submitted by the respondent and I am satisfied that the selection process was conducted in accordance with the Guidelines agreed between the Department of Education and Science and the CPSMA. Evidence as to how the interview process was conducted was furnished at the Hearing by Mr. A, the independent, external member of the Interview Panel, who is well experienced in the interview process as he is a member of the Diocesecan Panel of Accredited Interviewers since 1989 and I found his evidence to be extremely forthright. I note in particular his comments that the Panel Members met in advance of the interviews to agree the evaluation criteria - these criteria are in accordance with the aforementioned Guidelines and that each Panel Member marked the candidates across these criteria independently, no collaboration/ discussion took place. Copies of the signed marking sheets for each candidate by each of the Panel Members were submitted to the Equality Officer. I have also examined the Curriculum Vitae of the complainant and Ms. X. On the face of things it appears that both candidates were well qualified for the post. However, it is not my task to determine whether the most meritorious candidate was appointed from the selection process, rather I must examine whether or not the process was tainted in such a manner that resulted in the complainant being treated less favourable on the grounds cited. I note the complainant's comment that she was not asked any questions which she considered discriminatory in the course of the interview. The question posed by the Chairperson of the Panel as to the fairness of the process, whilst far from ideal, does not, of itself, constitute less favourable treatment of the complainant. Having evaluated all of the evidence I must conclude that the complainant has failed to establish a prima facie case of discrimination on grounds marital status, family status or age and her claim cannot therefore succeed. I would however caution the respondent as to the use of language at interviews and I would strongly suggest that all temporary staff are furnished with a written contract of employment, if this has not already occurred.
6. DECISION OF THE EQUALITY OFFICER.
I find that the complainant has failed to establish a prima facie case of discrimination on grounds of marital status, family status and age and her claim must fail.
____________________________
Vivian Jackson
Equality Officer
17 August, 2006
notes
(1) S.I. 37 of 2001