Moriarty
(represented by Ms Cliona Kimber, BL, instructed by
BCM Hanby Wallace on behalf of the
Association of Secondary Teachers in Ireland)
V
Board of Management, Moate Community School
(represented by Ms Marguerite Bolger, B.L., instructed by Arthur O'Hagan Solicitors)
Dispute:
Mr. Michael Moriarty referred a complaint of direct discrimination and victimisation on the age ground, contrary to the Employment Equality Act 1998, to the Equality Tribunal on 25 June 2004. The complaint concerned his failure to secure promotion on 4 occasions within the school, between June 2000 and 23 January 2004, and victimisation since the complainant lodged an appeal to the arbitrator in 2001.
The complaint was referred to mediation but this was not successful and a Non-Resolution Notice was issued on 23 December 2004. The complainant sought the resumption of the investigation and an Equality Officer was assigned to the case on 3 March 2005. Submissions were received from both parties but before a hearing could be held the Equality Officer had to withdraw for personal reasons. On 3 February 2006 I notified both parties that I would be hearing and deciding the complaint. Hearings were held on 12 May 2006 and 7 June 2006. Final information was received from the parties on 1 August 2006.
The complainant claimed he had been discriminated against on the age ground on 4 occasions:
- June 2000 for promotion to Home School Liaison Officer, when a much younger candidate was appointed
- January 2001 for promotion to Assistant Principal, when two appointments were made, one older than the complainant, one much younger
- November 2003 for promotion to Deputy Principal, when a much younger candidate was appointed
- [December 2003 - competition voided]
- 23 January 2004 for promotion to Assistant Principal, when a much younger candidate was appointed.
The educational qualifications and listed experience of both candidates was not disputed and is therefore not detailed here.
Jurisdiction
The respondent asserted that the Tribunal could not look at incidents prior to January 2004 as such incidents would be out of time, having been referred more than six months after the date of the incidents. There was significant legal argument in relation to this point, centring on whether a chain of discriminatory events was being alleged. However the claimant's representative clarified that the primary focus of the complaint was the interview on 23 January 2004 and that detailed evidence would not be presented in relation to the previous incidents. The latter were being adduced as evidence of an existing pattern of age discrimination in promotions. The respondent's representative did not seek to challenge this further, except to contend that such evidence should not in itself be sufficient to form the basis of a prima facie case.
The complainant also claimed that he had been victimised since his first appeal to the arbitrator in 2001. The appeal to the arbitrator did not come within the parameters of the Employment Equality Act 1998 as the appeal referred only to alleged procedural flaws and could not be regarded as opposing unlawful discrimination. The complainant subsequently clarified that he was claiming victimisation solely for incidents occurring after the promotion competition in January 2004.
Summary of relevant evidence from the complainant's submissions
Mr. Moriarty's claim of discrimination centred on the interview for an Assistant Principal post on 23 January 2004. The claimant argued that he was the more suitable candidate in the light of his longer and more extensive experience and his higher qualifications but that the school placed in first place on the panel a candidate approximately 17 years younger than Mr. Moriarty. This interview was held following a previous competition for the same post in December at which Mr. Moriarty had not been successful and about which he complained to the Board- the competition was subsequently declared void by the Board, for technical and clerical reasons. The position was re-advertised but this time there were only two applicants, the complainant and the candidate who had been placed first on the voided panel. When Mr. Moriarty was again not successful in this repeat competition on 23 January 2004, he appealed the decision unsuccessfully to the arbitrator on technical grounds and because he could not understand why he scored lower on experience and on capacity to meet the needs of the school.
At some stage after the interview Mr. Moriarty formed the view that the reason for his non-appointment was age discrimination, as:
- He considered himself to be higher qualified and to have had better and longer experience than the successful candidate, and he asserted that his previous experience had been undervalued. .
- He claimed that the conduct of the interview had been tainted by age discrimination and that he had been treated in an aggressive and hostile manner by the Department of Education and Science (DES) representative
- He also cited the results of three previous interviews as evidence of a pattern of age discrimination.
Qualifications and experience:
Mr. Moriarty said that his seniority, qualifications and experience were superior to those of the successful candidate and that this in itself was enough to establish a prima facie case of age discrimination. In particular he pointed to his 15 years' additional experience in Moate Community School, his possession of honours primary and post-primary degrees and diplomas and a long and extensive extra curricular contribution to the school.
Conduct of the interview:
Mr. Moriarty claimed that the interview was not conducted in a fair and positive manner and, while the other three interviewers acted fairly, the questioning by the DES representative was hostile and aggressive and took no account of the experience outlined in his CV. In particular the DES representative:
- had made an incorrect statement as to the number of hours available to do the post, which he felt was designed to wrong-foot him.
- had implied that Mr. Moriarty had lied when he described himself on his CV as a science teacher when he was not teaching science that particular year
- asked questions focused on what the claimant had not done rather than trying to elicit what he had done: e.g. whether he had attended a specific in-service course or was a member of a specific teachers association. Mr. Moriarty explained that his approach to interview was "to answer the questions that I was asked". He said that he had carefully prepared his CV so that the information would be on file for the interview board in case he forgot to mention it at interview.
Mr. Moriarty had no further issues with the remainder of the questioning by the DES representative or the other interview board members except that one member had specifically asked about qualifications gained or training undertaken in the last three years which he claimed to imply age discrimination as it was more likely that an older candidate would have gained the relevant qualifications outside the three year time span.
Mr. Moriarty criticised the marking sheets supplied by the respondent as being vague and subjective and not giving a breakdown as to how the totals were arrived at and he also challenged written comments made in relation to both himself and the successful candidate.
Mr. Moriarty accepted throughout that he was not able to comment on the relative performance of the other candidate at interview.
Pattern of age discrimination
i) as evidenced in previous interviews:
Mr. Moriarty claimed that the outcome of the three previous valid interviews was evidence of a pattern of age discrimination - see appendix 1.
ii) as evidenced by the conduct of the Principal:
Examples cited by Mr. Moriarty of preference for younger teachers included:
- On a number of occasions at staff meetings the Principal made explicit acknowledgement of the generic contribution of new or younger teachers with no equivalent acknowledgment of older teachers and in 2003 remarked that hope for the school rested with younger teachers.
- On one occasion a school publicity spread in the local newspaper excluded the photograph of the only older "new" teacher which he complained was deliberate
- School committees have a disproportionately high ratio of younger teachers and in particular he was refused membership of the School Development Programme (SDP) committee despite a request in writing.
- A memo on seniority requested dates of birth and it was also asked for on the 2004 competition application form.
Victimisation
Mr. Moriarty's initial claim of victimisation related to 22 alleged incidents which occurred after his appeal to the arbitrator in 2001 but in the course of the hearing he withdrew the claim in relation to incidents pre-dating the interview in January 2004. The remaining incidents can be summarised as follows:
- Remarks made by the principal to Mr. Moriarty on 30 January and 3 February 2004 when the latter was contemplating the further appeal to the arbitrator which he in fact subsequently made. During these remarks the principal allegedly said that, while the complainant had the right to appeal, he was "getting people's backs up", "shooting myself in the foot", "this was not the way to do things" and offered, if the appeal was withdrawn, to give advice re interview skills and also suggested that Mr. Moriarty should seek feedback from the members of the interview board when there was no interview in prospect. Mr. Moriarty stated his view that this was improper.
- Non-payment of travelling expenses on specified occasions
- Not having a printer, black/white board in the computer room
- Being the only teacher in the school with no room of his own
- Not having his (unpaid) work on computers publicly acknowledged
- Being left off the committee to raise funds for the new computer room
- Not informed of subject co-ordinator computer meeting, so that someone else was elected subject co-ordinator in his absence
- Not being allowed by the Principal to be on the Year Book committee despite his publishing experience
- Not being allowed to have a special night to celebrate a soccer championship although a Gaelic championship was celebrated with a special night
- Not being asked to take over the Gaisce awards despite having a swimming qualification and experience.
Mr. Moriarty put forward in evidence photocopied pages extracted from a special diary which he kept to detail incidents of alleged victimisation: he explained at hearing that these entries were transcribed from his normal daily diary.
In his second submission to the Tribunal, Mr. Moriarty indicated a further instance of victimisation, where he alleged he was prevented from making a DVD to celebrate the life of a member of staff who died tragically on duty and that this was deliberately done to deprive him of the opportunity for further enhancing his CV.
Additional relevant evidence presented at hearing on behalf of the complainant:
The complainant's representative claimed clear discrimination on the age ground, given the complainant's superior qualifications and experience, the lack of transparency, the mismatch between set criteria and the marking and a discriminatory question at interview. She stated that this was supported by statistics which showed a pattern of discrimination on the age ground and a policy of favouring younger members of staff. The cumulative effect led in her view to an inference of discrimination.
Qualifications: the complainant's qualifications - HDipEd, Diploma in management in education, diploma in curriculum studies, were all clearly directly relevant to an AP post. His Masters thesis had analysed individual performance from intake up to Junior Certificate within the Mercy College (later part of Moate CS) and was directly relevant to the school.
Experience:
The complainant outlined at hearing his extensive experience in the Community School, including experience of special duties posts, school committees, the ASTI and on local community involvement. In particular he considered that his experience as CEO of a company publishing educational resource material was of particular benefit, as it included writing, publishing, sales and staff management including dismissal of staff. He could not explain why he had not himself brought this up at interview but asserted that, as his status as CEO was stated in his CV, the interview board could have inferred its value.
Conduct of the interview:
Mr. Moriarty said that he had not had the opportunity to amplify his answers to questions. He reiterated the point made in his written submission that he only answered questions he was asked, particularly as the DES representative's questions were too rapid to allow for elaboration. He did however use the opportunity to make further points at the end of the interview.
In relation to the emphasis on recent relevant experience, he argued strongly that 3 years was only one-seventh of his career, whereas it was one quarter of the appointee's career. He pointed out that it was usual to do post-graduate qualifications once and he had already got one so he was unlikely to do another one.
In relation to the questioning of the DES representative, Mr. Moriarty said that the alleged remark "you're not teaching science but you call yourself a science teacher" implied he was lying. He felt he should instead have been asked "what are you teaching?" Mr. Moriarty queried why the questions had focused on courses which from his CV it was apparent he had not done. He also queried whether the other candidate had had to correct an error of fact by the DES representative. The tenor of questioning by the DES representative, coupled with the need for such correction, had thrown him for the rest of the interview.
Mr. Moriarty understood that notes of the interview had not been retained and he stated that the arbitrator had been told this in the earlier appeal. The only record available was the marking sheets which did not give a breakdown of the marks.
Conduct of the principal
The complainant accepted that scrutiny of the minutes of school meetings might show that individual older persons had been thanked for particular contributions but that there was no generic appreciation expressed for the work of longer-serving staff. He took issue with praising young staff for "fitting in" without equally praising older staff for general conduct. He would have liked to hear acknowledgement of all staff "young and old".
Mr. Moriarty accepted that new staff needed to be encouraged but considered that older staff members should also be encouraged as they in fact needed more motivation than younger staff. He said that he himself needed more motivation from management than he would have 30 years earlier. He contended that as a young man he would have been enthusiastic about a new job but that now he needed more encouragement as "we slow down" and need to keep energy up. He accepted that he had never articulated this to the Principal.
In relation to his application to the SDP committee, Mr. Moriarty produced in evidence a copy of a letter of application printed down from his computer. He said that the letter had included arguments in support of his membership, although he could not explain why these had not been saved. He stated that he had given this to the principal but it was ignored.
Evidence of Ms McDonagh, deputy principal 1996-2004, on behalf of the complainant
Ms McDonagh stated that she had observed a pattern of younger people being groomed for promotion and given greater opportunities for career development. She said that school committees were hand-picked by the Principal, not staffed by volunteers or elected members. The majority of committee members were under 50. She gave an example of a particular comment in support of her observations but the relevant witness did not attend, despite my issuing, at the complainant's representatives request, a letter under section 95 of the Act requiring the witness to attend. The complainant's representative stated that it was no longer considered appropriate that he attend.
Ms McDonagh supported Mr. Moriarty's contention that he had applied for membership of the SDP committee, saying that the principal had shown her the letter and commented to her that he would not be putting him on the committee. She could not recall the exact contents of the letter. She gave a number of other examples of alleged age discrimination in promotion and in membership of the committees.
She stated that she had been asked to replace Mr. Moriarty as tutor for a special class, which she presumed was because she was a number of years younger. She stated that this excluded Mr. Moriarty from the Pastoral Care committee as only tutors could serve on it.
She herself had been co-host of the school awards ceremony for 5 or 6 years, responsible for co-ordination and for a certain amount of speaking on stage. She had been dropped from this role. She felt miserable that she was removed. When she asked for explanation, the Principal said he wanted newer and younger faces.
She also contended that it was consistent with the pattern of favouring younger staff that a new member of staff was thanked for her contribution to a musical evening while Sr. Anne of the music school with 30 years experience was not thanked from the stage.
Evidence of Ms Mulcahy, ASTI assistant general secretary
Ms Mulcahy said she was not aware of many applicants of Mr. Moriarty's age who repeatedly apply for promotion to AP without success.
In relation to the successful candidate's assignment as career guidance enhancement co-ordinator, Ms Mulcahy said that the Department circular on career guidance enhancement stipulated that teachers should have a qualification and listed the acceptable ones. She accepted that it was not clear that it applied to the particular post at the time of the appointee's assignment. However it had always been best practice to have qualified persons in the role.
Evidence of Mr. Kenny, partner in educational publishing company
Mr. Kenny said that the principal at Arbitration had said that records of the interview were available but that notes were not available. He said that the principal had said that "recent relevant experience" had been taken into account. He also said that Mr. Moriarty had discussed with him around that time his concerns about age discrimination although he confirmed that this was not in any great detail and he did not give a date.
Statistical evidence
The complainant's representative submitted a very significant quantity of statistical evidence at hearing and subsequently. It was submitted that the statistical evidence showed a clear preference in the respondent school, since its amalgamation in 1998, for the promotion of persons under 41. In particular persons aged between 31 and 40 held over half the promotional posts (56.2%) whereas they comprised 35.9% of the teaching cohort. They argued that the posts held by persons over 51 were achieved prior to 1998 in other schools. Excluding pre-1998 appointments, they stated that persons aged between 41 and 50 achieved only 25% of posts, those aged between 51 and 60 only 18.18% of posts and only 1 person over 60 had been promoted. Of the 10 valid competitions since 1998, only 2 teachers over 41 were appointed. While acknowledging that there were few applications for promotional posts in age categories over 40, they argued that this was clear evidence of a culture of age discrimination on the grounds that there is little point in applying for promotional positions as they would not be successful.
Victimisation
The complainant's representative repeated that the list of incidents supplied, as amended to reflect solely incidents occurring after the January interview, constituted victimisation of the complainant.
Summary of relevant evidence from the respondent's written submission
The respondent's representatives denied all allegations of discrimination in relation to the interview or victimisation. They stated that they accepted that the complainant was a good candidate for the position and was well qualified and experienced but that, at interview, the successful candidate had satisfied the board that she was the better candidate.
Alleged discrimination
Qualifications and experience
In their submission the respondent's representatives did not dispute the complainant's qualifications or experience and did not comment on those of the successful candidate.
Conduct of the interview
The respondent's representatives stated that at all times the complainant and the successful candidate were treated in the same manner by the interview board members. They were both asked the same line of questioning and given the same opportunities to answer them and expand them as they saw fit.
While the respondent's representatives accepted that there was a question as to courses done in the previous three years, they stated that this was reasonable in a time of significant educational and curricular change and in any event the complainant could have answered by reference to more than 3 years.
Marking of the interview
Both candidates were marked by the interview board on the basis of the criteria set out by the Department of Education. The three categories under which they were marked were:
1. Capacity of the applicant to meet the needs of the school and the case made at interview - 50 marks
2. Service to the school - 30 marks
3. Experience of a professional nature in the field of education and involvement in the school - 20 marks
It was common case that the criterion "service to the school" was assessed by a mathematical formula based on length of service and that the complainant had correctly received the full 30 marks as the longer serving candidate.
Marking sheets were retained by the respondent and copies for both candidates were supplied to the Tribunal. The respondent's representatives stated that the sheets made it clear that the successful candidate scored considerably higher than the complainant under the disputed 2 categories and that the interview board unanimously agreed to put the successful candidate first.
Pattern of age discrimination
i) as evidenced in previous competitions: The respondent's representatives pointed out that one of the 4 impugned competitions had resulted in the appointment of an older candidate.
ii) as evidenced by the conduct of the Principal: the respondent denied that the principal showed any favouritism in thanking younger teachers and produced minutes of the relevant meetings showing that there were a large number of thanks for specific contributions regardless of age of teacher. They also denied that an older "new" teacher had been excluded from the publicity spread, stating that she had not been available at the time of the photograph. They stated that school committees were staffed on a voluntary basis and the respondent could not control the age profile. In relation to dates of birth, they denied that the 2004 application form requested date of birth.
Victimisation
In relation to Mr. Moriarty's claim of victimisation, the respondent denied any victimisation and in particular made the following points in relation to the alleged incidents:
- Mr. Moriarty was not treated any differently from anyone else in relation to travelling expenses which are a matter for the board of management and are paid on foot of individual claims, and expenses are not paid for voluntary activity;
- Mr. Moriarty never formally requested a printer and a new interactive board is presently being considered
- The computer room is designated as Mr. Moriarty's room
- It was appropriate to acknowledge regularly the work of the person who is the IT co-ordinator/network administrator in the school
- Mr. Moriarty was circulated with details of the fundraising committee for computer room but did not volunteer.
- The respondent denied that Mr. Moriarty was not informed of subject co-ordinator computer meeting
- The respondent stated that membership of committees is on a voluntary basis and denied that the Principal refused him.
- The reason the Gaelic championship received a special celebration was because that victory was on the last day of term, after the school awards ceremony.
Additional evidence presented at hearing on behalf of the respondent
At 17.30 hours, the evening before the first day of hearing, the respondent's representatives faxed copy original and transcribed interview notes to the Tribunal and to the complainant's representatives. The representatives explained that they had hitherto understood the notes were not contemporaneous but had just realised that they were taken during the interviews. They apologised for the late delivery of the notes. They explained that the remarks in the Arbitrator's report that there were no notes was a result of confusion, that the Arbitrator had in fact been referring to marking sheets which he was told were not available.
At the recess for lunch on the first day of hearing, the respondent's representatives handed in to the Tribunal the marking sheets for the interview and also gave the Tribunal a copy of the appointee's CV.
It was not disputed that marks for category 2 - service to the school - were correctly calculated. Consequently the areas of contention were the marking for categories 1 and 3.
Conduct of the interview
Evidence of the interview board members:
Three of the four members of the interview board attended to give evidence - the fourth member was stated to be medically unfit to attend. The validity of the composition of the board was not at issue.
Sister Maeve Rowan, chair of the Board:
Sr. Maeve had been nominated to the Board by the Trustees of the School to represent Mercy Convent, and chosen as chair by the board itself. She stated that the board had met a few days beforehand to:
- Review the circular on appointments
- Decide the line of questioning and the length of time to be given
- Agree the marking scheme.
Her role as chair had been to introduce the candidate, set them at ease, go through their CV and qualifications and then at the end to wrap up and offer a final opportunity to make a comment.
Her overall view of the successful candidate was that she was competent, had vision and enthusiasm and didn't count the cost. By contrast the complainant started well but lost focus, became agitated and upset and did not get back on track until the end. She considered his responses very vague and he did not use the opportunity at the end to raise the aspects of his experience he felt had been ignored. She accepted the question about science teaching had thrown him but did not see the DES representative remarks as implied he was lying.
Category 1: the appointee got 49 out of 50 compared to the complainant's 24 out of 50 because the appointee did a better interview. She said that while both parties outlined their contribution, the appointee's involvement, enthusiasm, dedication and commitment came across as greater. Essentially she reacted to questions by stopping, thinking and answering while the complainant seemed to panic.
Category 3: the award of twice the marks to the appointee for half the length of experience was because the appointee performed better at interview. She accepted that she had not taken the CV into account.
She could not recall the question about experience within the last three years but contended that in any event it would have been justifiable and not a discriminatory question.
Mr. Ledwith gave his evidence on the first day, before the marking schemes had been provided to the Tribunal.
He stated that his role was to ask questions concerning community involvement, the community school and the relationship between individuals and the school, essentially seeking a link between the community and the community school. He was an experienced interviewer and asked both candidates the same questions.
He considered that the appointee's replies to his questions showed her credit union experience gave her great familiarity with local activities and neighbouring areas. She struck him as straightforward and had given quite good responses. On the other hand, Mr. Moriarty's replies to the same questions lacked confidence and sureness. While overall he was straightforward and satisfactory he had not performed as well at interview. In describing the marking Mr. Ledwith said the relatively low marks for the complainant were based on his not having responded to the questions thoroughly enough. He had no hesitation in finding the appointee the more suitable candidate.
In his evidence he said that the marking scheme would not have been in the forefront of his mind and he did not recollect putting down specific marks and then totalling them. He could not recollect why marks appeared to have been changed on his marking sheet nor could he remember exactly how he made the assessment or what role the CV played in this. However, he considered the appointee's comments at the end of the interview had been impressive, although he could not explain why the interview notes indicated that the appointee did not make any final comments.
Mr. MacGleannain was the representative of the Department of Education and Science (DES). He had retired from the DES in 1997 as chief inspector and was still involved in the education sector. He corroborated Sr. Maeve's evidence as to process. His role was to deal with curriculum issues. He accepted that his comment about teaching hours was incorrect but said he could not see that this would wrong-foot the complainant. He asked simple questions about the science syllabus; he was particularly interested to see how the response was presented. The complainant had replied that he knew nothing about it as he was not teaching science that year, although in his CV he had described himself as a science teacher. Although he was surprised and in fact felt he was on the back foot himself, Mr. MacGleannain moved on in his questions as he felt the complainant had got a mental block.
His overall view was that the appointee was well up with modern education developments, she was a reflective practitioner good at looking at macro issues, her answers showed clear understanding and she would be an excellent candidate for the management team. Mr. Moriarty was a good candidate, just not as good; his contribution was disjointed and he tended to look at things individually rather than at macro level.
Category 1: He marked this immediately after the interview on a global basis. He felt the appointee had virtually full marks as she had responded excellently to all questions so he deducted 1 from 50. Equally he felt that Mr. Moriarty deserved only 28 out of 50 marks. He stated that there was no requirement on him to break down the marks further.
Category 3: He had awarded extra marks to the appointee for her in-service training because it was more recent and therefore more relevant to the current curriculum. Mr. Moriarty had not mentioned his maths in-service training in the current year and therefore did not get credit for it. He had also awarded extra marks to the appointee for her credit union experience as this could be globalised in work or in school and had community involvement. By contrast Mr. Moriarty had not indicated at interview the range of skills he had developed or used in his educational publishing role.
Pattern of favouring younger teachers
Evidence was given by Mr. Duffy, principal, who strongly denied the allegations. He accepted that he gave specific support to new teachers who he considered needed it when fresh from college. He considered that older teachers did not require as much support as they had greater experience. However he provided specific support when required, e.g. in up-skilling or where new courses or disciplinary problems warranted it. He also gave support with personal issues e.g. where teachers felt they were becoming stale or had difficulties with big classes. He also accepted that he had developed in 2004/5 a mentoring programme for new staff - whether newly qualified or new to the school - which was very successful, but denied this was discriminatory.
In relation to acknowledgement of staff contributions, his policy was to thank teachers of all ages for specific contributions but to give particular thanks to young and/or new staff. He did not consider it appropriate to give generic thanks to "senior" or "longer-serving" staff, but preferred to recognise individual contributions beyond the norm.
In relation to committees, appointment to committees was by and large on foot of the teacher's particular functions.
SDP: He denied receiving Mr. Moriarty's application and had no recollection of showing it to Ms McDonagh. He pointed out the committee had been in abeyance because of an IR dispute since 2000 and was not in existence at the time of the alleged letter. Almost all of the committee were appointed ex-officio or on the basis of nominations from each area. One committee member was over 60 and 2, including himself, over 50.
Pastoral Care committee: This committee was again almost completely composed of ex officio members. Mr.Moriarty denied he had removed Mr.Moriarty as a tutor for age reasons - it was for time-tabling reasons, commenting that time-tabling was quite complicated enough without adding discriminatory considerations. Being a tutor was not a requirement for getting on to the committee. It was not unusual to stop being a tutor and in fact Mr. Moriarty had subsequently been appointed a tutor again.
He also made the following responses to specific allegations:
- Ms McDonagh was not replaced in the awards evening, she continued to co-ordinate and make some awards; the change of format was to make it more slick and inventive and include more people on the platform. He had not been aware that Ms McDonagh felt any upset.
- The exclusion of an older new teacher from the school publicity spread was at her own request
- The appointee was not being groomed for promotion - he did not see how her role in transition year activities would give her an advantage and her roles in special needs co-ordination and career guidance enhancement co-ordination were administrative and did not need qualification.
Statistical evidence
The respondent's representative also submitted after the hearing a significant quantity of statistical evidence in relation to pattern of appointment and made amendments to statistics provided by the complainant's representative.
Victimisation:
The respondent denied all allegations of victimisation as listed by the complainant and repeated that, where facts were not in dispute, they had shown valid explanations for any difference in treatment.
In relation to the new allegation of victimisation in not being allowed to make a DVD on the life of a deceased colleague, the chair of the parent's council Mr. Cunningham attended the hearing to explain the position and gave evidence. In the light of Mr. Cunningham's evidence Mr. Moriarty expressed deep regret, explained that he had not been aware of the full facts and, in the light of the new information, he withdrew his claim that this was victimisation.
Decision of the Director
I have considered the voluminous evidence presented in writing both before and after the hearing and the extensive evidence at the two days' hearing.
The Labour Court, in a recent determination (A General Practitioner and A Worker - Determination No EED062) said "It is now well settled that in cases of discrimination it is for the Complainants to prove the primary facts upon which they rely in asserting that they have suffered discrimination. If those facts are proved and they are regarded as sufficient to raise an inference of discrimination, the onus shifts to the Respondent to prove the absence of discrimination. In all cases the standard of proof is the normal civil standard; that is to say the balance of probabilities." The first matter to be addressed, therefore, is whether the complainant has established the relevant facts.
In cases involving selection procedures, the Tribunal's function is not to re-run an interview or to substitute its view as to the relative merits of the complainant and the successful candidate. In Dublin Institute of Technology and a Worker , the Labour Court said "It is not the responsibility of the Equality Officer or of this court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the [protected ground] influenced the decision of the [interview] Board." In this case I am required to decide whether the age ground influenced the decision of the interview board in January 2004, to assess whether there was a pattern of age discrimination and to decide whether the claimant was victimised under the Act.
Discrimination
Qualifications and experience
The complainant established to my satisfaction that he had higher qualifications than the successful candidate but I note that he received additional marks for this. The complainant also established that he had longer service than the successful candidate but I note that he received additional marks for this, in criterion 2. Both candidates clearly had significant experience of value to the school. I am mindful that I am not required to substitute my view as to who was the better candidate for that of the interview board but merely to decide whether there was any taint of discrimination at interview.
Conduct of the interview
In considering the conduct of the interview, my investigation was significantly hampered by the very late production of key evidence from the respondent. I accept that this was due to an unfortunate misunderstanding in relation to the standing of this material.
The claim of discrimination at interview centred on two aspects: the questioning by the DES representative and a question as to "recent relevant experience". I first assessed whether the questioning of the DES representative could be regarded as discriminatory. On the balance of probabilities, I accept that the DES representative made a genuine mistake when he referred to the number of hours allowed for the AP role and did not deliberately set out to disconcert the complainant. I consider it was reasonable for him to ask about science teaching since the complainant clearly described himself on his application form as a science teacher. While it is not best interview practice to ask closed questions, such as whether someone attended a specific course, I consider it is open to the interviewee to draw attention to another course attended. It is also perfectly valid in my view to ask how a teacher kept up to date in a fast-moving area such as science education. Overall therefore I consider there was no evidence of discrimination in the questioning of the DES representative.
I note that both parties agree that a question was asked about "recent relevant experience". I accept the complainant's point that an older person who had gained a Masters qualification earlier in his career was less likely to undertake a second one. However, in this particular case the complainant did, as I indicated earlier, gain additional marks for the Masters and the issue centred more on attendance at in-service courses. I note the complainant did not tell the interview board about recent in-service courses he had attended and his own evidence was that his approach to interviews was to confine himself to the specific questions asked. I accordingly do not consider that the question in this case raises a presumption of discrimination. I would however recommend that interview boards do not pose questions as to relevant experience within a specified time frame.
The interview notes provided showed some discrepancies with the oral evidence of the board members. Nevertheless I consider these discrepancies are not sufficient to discredit the testimony of the witnesses at hearing.
The alleged lack of transparency is not I consider borne out by the evidence. The criteria are established by the DES, the interview board met in advance of the interviews to agree marking details and lines of questioning and board members adhered to them in the course of the interview.
I note that this was a competitive interview and that the unanimous view of the interview board members present was that the successful candidate had performed better on the day. By the complainant's own evidence he had been thrown by the questioning of the DES representative and had not subsequently performed to the best of his ability. This was supported by the direct testimony of two of the three board members. As I have found that the questioning by the DES representative was not discriminatory, I cannot find that Mr. Moriarty's failure to perform to his best at interview was as a result of age discrimination.
Pattern of age discrimination
In relation to the evidence of Ms McDonagh of a pattern of age discrimination, the persons mentioned by her as having been less favourably treated did not themselves attend the Tribunal to give evidence, despite in one case having been required under section 95 to attend. I would point out that failure to comply with this requirement is in itself an offence under section 99 of the Act.
While not bound by the strict rules of evidence, I can give very little weight to the witness's unsupported statements as to incidents affecting other people.
In relation to her statement that that the only person thanked from the stage on the occasion of a musical evening was a new member of staff and that Sr. Anne of the Music Department was not thanked for her work, I have viewed the DVD of the musical evening supplied subsequently to me by the respondent and not disputed by the complainant and I noticed that, among a very wide ranging list of thanks by the Principal, Sr. Anne and her team were given "a very special word of thanks" by name, their contribution was acknowledged and indeed she and her team were each presented from the stage with a bouquet of flowers.
In relation to Ms McDonagh's statement that she was dropped from the organisation of award nights, I note that the yearbook supplied by the respondent and not disputed by the complainant included photographs of her on the stage with the Principal.
There is a complete contradiction of evidence in relation to Ms McDonagh's statement that the principal showed her the letter from Mr. Moriarty and commented that he would not be put on the committee; this was flatly denied by the respondent. There is a further difficulty in that the complainant was not able to supply a copy of the final version of this letter. I note that there was no evidence that this alleged exclusion was on the age ground. On balance I find the respondent's evidence in this more compelling.
In relation to the evidence alleging a general policy of favouring younger teachers, the minutes of the contentious school meetings were examined individually and in detail during the hearing. It was clear that the principal on each occasion thanked a very large number of individual teachers for their contributions, and their ages ranged very widely. I was unable to discern a pattern of age discrimination in relation to the individual thanks. In relation to the argument that the principal gave special support to new (and mostly younger) teachers, I accept the respondent's argument that persons starting a new career or in a new school might well need some additional support or recognition, whether by mentoring or by a general welcome.
The complainant alleged that younger members of staff were given additional opportunities to serve on significant committees as a way of grooming them for promotion. The respondent denied this and said such service would be of no benefit. The respondent's evidence varied as to whether committee members were volunteers, selected by the principal or were ex officio. In my view a more transparent policy for committee membership would be beneficial. However, the complainant has not convinced me that his failure to be selected to certain committees was influenced by age discrimination.
I therefore do not consider that a pattern of unlawful discrimination on the age ground has been established by the complainant.
Statistical evidence
A substantial number of statistics was provided in relation to the relative representation of the various age cohorts in the school and the success rates at the four interviews in question. I have extrapolated what in my view are the key figures (appendix). I note that there is a peculiarity in that the numbers of people in the 41-50 age cohort in the school are relatively low at 9%, significantly below the 33% in the 31-40 cohort or the 23% in the 51-60 cohort. The complainant is not in the under-represented cohort. The numbers going for promotion are relatively low and are predominantly in the 31-40 cohort. While it is true to say that overall only 1 of the appointees was over 40, I note that 50% of those over 50 already hold posts at AP or higher, compared with 10% of those between 31 and 40 and 17% of those between 41 and 50. Overall I do not consider the statistics given indicate a pattern of age discrimination. In relation to the specific competitions, because the numbers of applicants were so small, I consider it impossible to drawn statistically significant conclusions from them.
Victimisation
I have given careful consideration to the incidents presented by Mr. Moriarty as evidence of victimisation and to the respondent's denial of such victimisation.
Victimisation is defined in the Employment Equality Acts as adverse treatment consequent on a complainant's having taken one of more of a list of specified actions. The complainant had not taken any of those specified actions at the time of the first alleged incident of victimisation, remarks allegedly made to him by the principal on 30 January and 3 February 2004. I note that these remarks were in fact made in the context of a possible appeal to the arbitrator on procedural grounds. As there was no evidence that at that stage Mr. Moriarty was opposing an act unlawful under the equality legislation, the alleged remarks cannot be regarded as coming within the meaning of victimisation under the Employment Equality Acts.
While it is clear from Mr. Moriarty's evidence that he genuinely considered himself to have been treated unfavourably, he had not presented any evidence to indicate that such treatment started after, or as a result of, his opposition to discrimination. Indeed his original inclusion of similar patterns of incidents from at least the time of his first appeal to the arbitrator in 2001 acted to undermine his claim of victimisation contrary to the Employment Equality Act.
I therefore do not uphold the complaint of victimisation.
Decision
On the totality of the evidence, I find that the complainant has not established a prima facie case of discrimination or victimisation by the respondent and I therefore find for the respondent.
Melanie Pine
1 November 2006
STATISTICAL EVIDENCE ON PROMOTIONS
Table 1: School year 2003/4: persons holding posts of responsibility (SDT, AP, DP, DDP) by age
Age group Number of persons in age ground Percentage of school cohort of 70 teachers Number of posts of responsibility held Percentage of posts of responsibility
20-30 18 26% 4 22%
31-40 23 33% 11 48%
41-50 6 9% 1 17%
51-60 16 23% 12 75%
60+ 7 10% 4 57%
Table 2: school year 2003/4: persons holding AP, DDP or DP posts by age
CHECK PERCENTAGES
Age group Number of teachers in age group Percentage of school cohort of 70 teachers Number of AP/DP held Percentage with AP/DDP/DP posts
20-30 18 26% 0 0
31-40 23 33% 2 9%
41-50 6 9% 1 17%
51-60 16 23% 8 50%
60+ 7 10% 3 43%
Table 3: success rates for AP/DDP/DP posts by age x competition
2001 AP competition
Age bands Number of applicants Number of appointee % of applicants successful
20-30
31-40 4 1 25%
41-50
51-60 1 0%
60+ 1 1 100%
2003 AP Competition
Age bands Number of applicants Number of appointee % of applicants successful
20-30
31-40 1 1 100%
41-50
51-60
60+
2003 DP competition
Age bands Number of applicants Number of appointee % of applicants successful
20-30
31-40 4 1 25%
41-50 2 0%
51-60 2 0%
60+
2003 AP competition (subsequently voided for technical reasons)
Age bands Number of applicants Number of appointee % of applicants successful
20-30
31-40 5 1 20%
41-50
51-60 1 0 0%
60+
2004 AP competition
Age bands Number of applicants Number of appointee % of applicants successful
20-30
31-40 1 1 100%
41-50 1 0 0%
51-60
60+