FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BOARD OF MANAGEMENT, BALLINROBE COMMUNITY SCHOOL (REPRESENTED BY MARCUS DOWLING B.L. INSTRUCTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MARY WALSH, KATHLEEN JACKSON, HELEN ACTON (REPRESENTED BY ALEX WHITE B.L. INSTRUCTED BY BCM HANBY WALLACE) REPRESENTED BY ASSOCIATION OF SECONDARY TEACHERS IRELAND DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998 Dec-E-2004-041.
BACKGROUND:
2. A Labour Court hearing took place on the 27th & 28th October and 1st & 2nd December 2005, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's Determination:-
DETERMINATION:
This dispute concerns a claim by Mary Walsh, Kathleen Jackson and Helen Acton (the Complainants) that they were discriminated against on grounds of their gender by the Board of Management of Ballinrobe Community School (the Respondent) in the filling of a vacancy for the post of Assistant Principal, contrary to Section 8 of the Employment Equality Act 1998.
In 1999 the school proposed to fill the post on a temporary basis and to that end, invited applications from qualified teachers at the school. The Complainants together with two other male applicants applied for the post at that time. A male applicant was subsequently appointed to the post.
The complainants appealed against that decision pursuant to a scheme of arbitration agreed between the Teaching Unions and an Association representing the Respondent. The arbitrator found that the selection board had misconstrued the rules applicable to the awarding of marks for experience in a post of responsibility.
As a result of this decision the appointment was rendered void and it was decided to hold a fresh competition for the post. It was then decided to fill the post on a permanent basis and in October 2000 applications were invited from teachers at the school. Each of the complainants again applied for the position. The male teacher who had succeeded in the original competition also applied. Interviews were held by a selection board appointed in accordance with the Deed of Trust under which the school was established. The male candidate who had succeeded in the original competition was again selected for appointment. The complainants appealed the decision to an arbitrator who again found that the selection board had erred in the manner in which they had allocated marks to the successful candidate. In the interim, the complainants presented a complaint to the Equality Tribunal alleging discrimination by the Respondent on grounds of gender. Following an investigation an Equality Officer held with the complainants. The Respondent appealed this decision to this Court.
The Evidence
The Court heard evidence from the following witnesses: -
Ms. Mary Walsh, Ms. Helen Acton, Ms. Kathleen Jackson (Complainants) and from the members of the members of the selection board, namely; Sr. Theresa Delaney (Representative of Order of the Sisters of Mercy & Chairperson), Mr. Joseph Langan (CEO, Co. Mayo V.E.C.), Sr. Mary Hannelly (Representative of the Archbishop of Tuam),
Mr. Eamonn McGuiness (Representative of Department Education & Science)
Mr. Michael McNulty(Representative of Co. Mayo V.E.C.)
The Court also heard evidence from Mr. Luke O’Malley (Principal of the Respondent) and from Ms. Angela Connolly (Representative of the Board of Management of the Respondent).
Complainants’ Case:
The Complainants gave evidence in relation to a number of matters which they alleged together amounted to prima facie evidence of discrimination thus causing the probative burden of establishing the absence of discrimination on the balance of probabilities to pass to the Respondent.
These matters were as follows:
1. The complainants were better qualified academically than the successful applicant.
2. The complainants had more teaching experience than the successful candidate.
3. Two members of a previous selection board for the same position in a temporary capacity were once again present in the second selection process. The Complainants contended that it was inappropriate for them to have participated.
4. The Complainants contended that the successful candidate had been preferred by the Principal over other members of staff in being asked to undertake duties involving visiting primary schools in the area and that other members of staff were never given an opportunity to undertake that duty. This the complainants contended gave the successful candidate an unfair advantage at interview.
5. The Complainants contended that the successful candidate had also been given credit at interview for carrying out the duties of Assistant Principal in a temporary capacity and that this had been found to be unfair when subsequently appealed to an arbitrator.
6. The Complainants also referred the Court to the marks allocated to each of the Complainants compared to those allocated to the successful candidate. It was submitted that there was no fair or reasonable basis upon which such a disparity of marking could be arrived at having regard to the qualities and experience of the unsuccessful candidates. It was also submitted that the marking system displayed a determination to put the successful male candidate significantly ahead of the three female complainants and the Court was invited to infer that the reason for this was the successful candidate’s gender.
7. The Complainants contended that the selection board had significantly misconstrued the five headings under which marks were to be allocated in the discretionary part of the process, as set out in the annex of a circular letter sent out by the Department of Education and Science.
8. The Complainant stated that certain remarks made by the Principal of the School could be inferred as showing a discriminatory disposition towards women. The Court was told in evidence of an incident in 1998 in which the School Principal stated in the course of an exchange at a staff meeting that he “would prefer to deal with ten men than one woman any day” or words to that effect. This, it was submitted, disclosed a discriminatory disposition on the part of the Principal. The Principal also sat in on the interviews as secretary which, given his previous comments, could lead to an inference that he was biased in favour of the male candidate and may have attempted to influence the board in favour of the male candidate because he was male.
9. Finally the Complainants contended that a statistical analysis of appointments to posts of responsibility at the school disclosed an imbalance in favour of men (details were provided to the Court) that in regard to the period 1998-2000, although 55% of the staff were female, five out of six appointments to posts of responsibility were to male applicants.
Burden of Proof
The first issue for consideration is whether, on the evidence, the complainants have established a prima facie case of discrimination so as to shift the probative burden to the employer. The test to be applied in addressing this question is that formulated by the Court inMitchell v Southern Health Board.[2001] ELR 201.This requires the complainants to establish the primary facts upon which they rely in asserting that they were the victims of discrimination. If these facts areestablished it is for the Court to determine if they are of sufficient significance to raise the presumption of discrimination. If those two limbs of the test are satisfied it is for the employer to establish on the balance of probabilities that there were objective reasons for the selection unrelated to gender. There is no dispute between the parties as to the appropriateness of this test in the instant case. There was, however, considerable disagreement as to the how it should be applied to the facts of the case.
There is no exhaustive list of facts which can be relied upon to shift the probative burden.
The first duty of the Court however is to decide what facts have been established and whether they are of sufficient significance to raise a presumption of discrimination.
The Court finds that the following facts were established by the complainants
1. They had longer service than the successful candidate.
4. Two members of a previous interview board were present on this interview board.
5. Prior to the interview process complained of, the successful candidate visited primary schools in the area in order to promote the school and received credit for this at interview.
6. The successful candidate had been given credit at interview for his appointment as a temporary Vice Principal.
7. The principal had made the remark complained of and was present at the interviews.
8. In the years 1998 to 2000 five of the six appointments as vice principals were male.
As referred to later in this judgment the Court does not accept that the complainants have established as a fact that the respondents misinterpreted the provisions of the circular letter sent out by the Department.
While a considerable amount of evidence was given by the respondent as to the relevance of these facts, which (evidence) will be dealt with later in this determination, the Court is in no doubt that the above facts have been established and that, taken as a whole, while some would be of considerably less significance than others, they are sufficient to allow the Court to infer that the complainants may have been discriminated against on the gender ground.
Once the inference has been established the onus then switches to the respondent to rebut the inference on the balance of probabilities.
The Respondent's’Case
It must be said at the outset that the Court carefully considered the evidence given by the members of the selection board and has observed their demeanour in giving evidence. As is the normal practice of this Court, the witnesses were not present in Court before giving their evidence. They nonetheless gave a consistent account of how the result was arrived at. These witnesses were subjected to vigorous and skilful cross-examination and were questioned at length by members of the Court. While some inconsistencies did emerge, they did not resile from their evidence-in-chief on any point of substance and materiality nor were the core points of that evidence undermined.
The Court has come to the view that they were truthful witnesses and that their account of what transpired in the selection process is substantially correct. The Court will consider the Respondent's rebuttal evidence in respect of each of the facts established by the Complainants
1. Length of Service and Academic qualifications
Evidence was given that the allocation of marks in the competition was in accordance with a circular letter issued by the Department of Education and Science which in turn was based on an agreement, made between the Teacher Unions and the Department. This required that marks be awarded under three headings namely,
a) Capacity of the applicant to meet the needs of the school, and the case made at interview.
b) Length of service in the School.
c) Experience of a professional nature in the field of education and involvement in the School.
These headings attracted a maximum of 50, 30 and 20 marks respectively. The service to the school criterion related exclusively to actual service and marks were awarded automatically based on the service of each candidate. The selection board had no involvement in the allocation of marks against that criterion. There was no provision in the marking scheme for academic qualifications to be taken into account and therefore the respective candidates merits on that ground were not taken into account.
2. The Disparity in Marks
A. Capacity to meet the needs of the school and the case made at interview
The first criterion – capacity of the applicant to meet the needs of the school, and the case made at interview - involved discretion on the part of the selection board in the allocation of marks and required an assessment by the board of the merits of each candidate presenting for interview.
The members of the selection board gave evidence as to how the competition was conducted. They told the Court that each of them had received the application forms completed by the candidates in advance of the interviews. They studied the forms and took their content into account in assessing the candidates. The members of the selection board had a pre-interview meeting on the day of the interviews which lasted from 11:30am to 12:50pm. They then went for lunch and the interviews commenced at 2pm. At the pre-interview meeting Sr. Delaney was selected to act as Chairperson. At the pre-interview meeting the selection board had also decided on the allocation of the 50 marks available under the criterion of the capacity of the applicant to meet the needs of the school, and the case made at interview. The Department of Education and Science circular dealing with selection procedures provides that this criterion should be examined under five headings which are set out in an annex to the circular. Based on its interpretation of the circular the selection board decided to assess candidates by reference to the following:
(a) Ability to perform range of duties
(b) Performance to date
(c) Needs identification
(d) Applicant’s reaction
(e) Professional presentation.
The selection board had decided that ten marks would be allocated under each heading. In the competition the successful candidate scored consistently higher marks than the other candidates. The marks awarded in the competition were as follows: -
| Criteria | Complainant 1 | Complainant 2 | Complainant 3 | Successful Candidate |
| Ability to perform range of duties | 6 Marks | 6 Marks | 4 Marks | 10 Marks |
| Performance to date | 5 marks | 4 marks | 4 Marks | 8 Marks |
| Needs Identification | 4 marks | 4 marks | 4 Marks | 9 Marks |
| Applicants reaction | 7 Marks | 5 Marks | 3 Marks | 8 Marks |
| Professional presentation | 6 Marks | 8 Marks | 4 Marks | 9 Marks |
| Total (50) | 28 | 27 | 19 | 44 |
Members of the selection board told the Court that under the headingsability to perform a range of duties and performance to date,they were particularly impressed by the successful candidate’s involvement in visiting local primary schools with a view to encouraging students to enrol at the school. They were also impressed by his involvement with the school musical over a number of years and the fact that a video for use in promoting the Leaving Certificate Applied had been made of his class. They said that the successful candidate had also identified a number of needs of students at the school and in the opinion of the members of the board, he was more student-centred in his approach than the other candidates. The Court was told that the other candidates, when asked to identify the unfilled needs of the school, were more teacher centred and had placed greater emphasis on the needs from a teacher’s point of view rather than a student’s.
The members of the selection board had been informed of the outcome of the previous arbitration but had not been informed as to who the appellants were in that case. The first candidate at interview (who is one of the Complainants) subsequently informed them that she had been involved in that arbitration. The members also confirmed that the School Principal had no involvement in the selection process and had not indicated any disposition in favour of any of the candidates. They confirmed that the selection had been made entirely on merit.
B. Experience of a Professional Nature and Involvement in the School
When determining the division of the 20 marks awarded for experience of a professional nature and involvement in the school, the lead was taken by the Department of Education and Science representative. It was determined that the 20 marks should be divided as follows: -
In School Experience:
(a) Contribution of applicant to the school 4 marks
(b) Experience as a post holder in a temporary 4 marks or permanent capacity
(c) Experience as co-ordinator of a school project 4 marks
Out of School Experience:
(a) Professional Development (in-service etc) 4 marks
(b) Subject Association 1 mark
(c) Professional Associations 1 mark
(d) Work Experience – other than teaching 1 mark
(e) Course Committee Membership 1 mark
(NCCA, NCVA and NCEA)
The interview board’s scope for discretion under this heading was limited. It was admitted that the interpretation of this set of criteria differed slightly from previous interpretations of the Annex to Circular Letter 32/’00.
3. Membership of the Interview Board
Evidence was given that the Respondent had no discretion in the appointment of the selection board which interviewed the candidates. The appointment of this board was governed exclusively by the Deed of Trust under which the school was established. This requires that a selection board be comprised of: -
• A representative of the Sisters of Mercy
• A representative of the Archbishop of Tuam
• A representative of the Vocational Educational Committee
• The Chief Executive Officer of the Vocational Education Committee (or his/her nominee)
• A representative of the Department of Education and Science
Of the five members on the interview board appointed two were women and three were men. The Principal of the school had no involvement in the selection process and merely acted as secretary to the selection board. Two members of the selection board appointed in the second competition; the representative of the Mercy Order and the Chief Executive Officer of the VEC, had participated in the previous selection process whose decision had been overturned in 1999. The other members of the selection board had no previous involvement with the school and did not have any prior knowledge of the candidates.
The Respondent strongly contended that the composition of the interview board was not set up in any way as to give an advantage to one candidate of a specific gender over another candidate of a different gender.
4. Visiting the Primary Schools
The Principal gave evidence in regard to the question of visits to local National Schools to extol the merits of Ballinrobe Community School as a second level choice and that the successful candidate had volunteered to do the job. He testified that none of the claimants had sought to participate when this matter was raised at a subsequent staff meeting.
5. Credit for service as Assistant Principal
It was accepted by the respondent that credit for acting as an Assistant Principal was given at the interview and on appeal the giving of such credit was found to be incorrect. However, the Court accepts that credit would have been given to any candidate, male or female and that to credit somebody for acting as Assistant Principal is not in itself evidence of gender bias. 4 marks out of a total of 100 had been given for this aspect of the interview.
6. The Principal’s Attitude
The Principal, in his evidence, agreed that he acted as secretary to the Board, but acted purely in that capacity. He did not participate in any way in the decision-making process (evidence corroborated by the other members of the selection board).
He agreed that he made the allegedly offending remark at a staff meeting in 1998 but insists that it was done in a jocular manner in an attempt to defuse the tension at what had been a difficult meeting. He subsequently realised that it had been misconstrued and he apologised for any upset unintentionally caused. He insisted that the incident in no way reflected on his behalf a predisposition to discriminate on the ground of gender. In any event he had no opportunity to influence the decision making process of the Board.
7. Male Bias in Appointments
The Respondent submitted statistical evidence, which was not disputed, to the effect that since 1990 a roughly equal number of men and women were appointed to Assistant Principal Posts at the Respondent school. It was further averred that at present there are six women and two men holding Assistant Principal Posts at the School, notwithstanding that 45% of full-time teaching posts are held by men and 55% by women.
Findings of the Court
Where, as in the present case, the probative burden is on the Respondent a presumption of discrimination arises. That is a rebuttable presumption which can be negated by the Respondent providing a convincing non-discriminatory explanation for what occurred. That explanation must be sufficient to satisfy the Court, as a matter of probability, that the less favourable treatment complained of was in no sense whatsoever on grounds of gender. Since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (seeBarton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales inWong v Igen Ltd and othersIRLR 258). . The court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (seeNevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).
There are aspects to the selection process in this particular case which might be regarded as worthy of explanation. However that cannot be determinative of the case. Those who made up the selection board each gave evidence before the Court in which they explained why they preferred the successful candidate to the Complainants. The factors, and the Court accepts the evidence of the witnesses in this regard, to which they averred were all gender neutral. They said that they were looking for a candidate who was student centred and who could identify and address relevant unmet needs of the school. The said that they were impressed by the successful candidate’s presentation before them and they were also greatly impressed by the enthusiasm with which he took on certain duties outside school hours. While the Court may take a different view as to the weight which should attach to these factors, if it is established that the stated gender neutral reason for the marks awarded was the real reason, then it must hold that the Respondent has discharged the burden of proof which it bears. In that regard, as was pointed out by O’Sullivan J inPauline Mulcahy v Minister for Justice, Equality and Law Reform and Waterford Leader Ltd[2002] 13 ELR 12, there is no rule either in law or in logic to say that because a person offers a bad reason this necessarily means that the bad reason is not the real one.
Another feature of the case on which the complainants place considerable weight was the discriminatory remark passed by the Principal some time before the events giving rise to this complaint. The Principal accepts that the remark was passed but denied that it evinced a discriminatory disposition on his part. He said the remark was made jocularly and in an attempt to defuse tension. The Principal later apologised for the remark when he became aware that it had given offence.
The Court does not minimise the potential significance of this aspect of the case. However it could only be of probative value if the Principal was involved in making a decision in the competition or influenced those who did make the decision. Each member of the selection board and the Principal himself gave sworn evidence that he had neither involvement with or influence over the impugned result.
The Court accepts the veracity of the evidence that the successful candidate was appointed because the selection board considered that his qualities and attributes were the most suitable for what they regarded as the requirements of the impugned post. It follows that the Court must also accept that the Respondent has established, on the balance of probabilities, that the decision was in no sense related to the gender of the successful candidate or to that of the Complainants. If there was irregularity in the conduct of the competition under the applicable rules, or if the successful candidate was preferred for reasons other than the fact that he was male, and it must be stated that no evidence was adduced to reach any such conclusion, the Complainants’ remedy lies elsewhere and such a preference could not of itself be a basis for a finding of discrimination on the gender ground.
The Court is also fortified in its view that the selection of the successful candidate was gender neutral by the statistics concerning the gender breakdown of appointments to posts of responsibility at the school recited earlier in this determination. In the Court’s view these figures do not disclose any pattern of bias against women in the making of appointments.
Determination:
On the basis of the findings recited above the Respondents must succeed in this appeal. Accordingly it is the determination of the Court that the Complainants herein were not discriminated against on grounds of their gender. The Respondent’s appeal is allowed and the decision of the Equality Officer is set aside.
Signed on behalf of the Labour Court
Raymond McGee
30th March, 2006______________________
AH.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.