Bermingham
AND
Mater Christi Secondary School & ASTI/JMB Appeals Board
(Mater Christi represented by Siobhán Phelan BL, on the instructions of Arthur O'Hagan Solicitors)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Imelda Bermingham that she was discriminated against by Mater Christi Secondary School on the ground of gender, contrary to the provisions of the Employment Equality Acts 1998 and 2004, when a male colleague was appointed to a promotional post. She claimed further that she was discriminated against by an all-male appeal panel which upheld the appointment of her male colleague.
1.2 The complainant referred claims to the Director of the Equality Tribunal on 7 September 2004 under the Employment Equality Acts 1998 and 2004. In accordance with her powers under section 75 of the Acts, the Director then delegated the cases on 1 July 2005 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought from the parties, and a joint hearing was held on 9 November 2006.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant has been employed as a teacher in Mater Christi Secondary School (the School) since 3 September 1979. She was appointed to a Special Duties Post (SDP) on 11 February 1999, as was a male colleague who had started his employment in the School in March 1980. Their posts were respectively denoted SDP No 7 and SDP No 8, demonstrating the complainant's seniority to her male colleague. The complainant claims generally that there is a pattern of consistent favouritism shown to male members of staff, and that they are more easily facilitated regarding time off than are their female colleagues. More specifically, the complainant alleges she was discriminated against in relation to appointments to promotional posts at Assistant Principal (AP) level in 2001 and again in 2004.
2.2 The complainant says that AP Post No 6 became available to be filled on a permanent basis in September 2001. She says normal promotional practice would be that an AP vacancy would be filled by the most senior SDP holder, so those lower down the seniority list did not apply. However, it emerged that no applications were received and the post had to be re-advertised. The complainant says the Principal announced at a staff meeting that she would talk to the relevant people, by which the complainant understood that she would start with the holder of SDP No 1 and work her way down until she came to the most senior teacher who did want the post. The complainant says that the holder of SDP No 6, a male, was ultimately appointed to the post ahead of the female teachers holding SDP Nos 1 to 5. She says this surprised her, but she passed no further comment at the time as he was senior to her anyway.
2.3 However, the complainant says that AP Post No 5 became available at the same time, on a temporary basis. Again, no applications were received and the Principal was to contact people individually. She did not speak to the complainant, and the complainant says she assumed someone senior to her had indicated they wanted the post. The complainant says she was stunned when it was announced that her junior male colleague, the holder of SDP No 8, had been appointed. She says she complained to the Principal that this was unfair and incorrect, but that she got no satisfaction. She says that she did not pursue the matter further as it was a temporary appointment and she did not want to create a bad atmosphere. She says that the Principal did confirm that she was still the more senior teacher if and when the post became available on a permanent basis.
2.4 In October 2003, AP Post No 5 became available on a permanent basis. The complainant says the advertisement seeking applications stated that both the AP post and SDP No 8 were to be filled. Since her male colleague was the substantive holder of SDP No 8, the only way it could become vacant was if he were permanently appointed to AP Post No 5. The complainant says the Board of Management (BOM) clearly had it in mind that he would get the AP post, despite the fact that there were seven females ahead of him in terms of seniority.
2.5 The complainant says she approached the Principal about the AP post and was given a definite implication that she should not apply. The complainant says the Principal said that in her experience a candidate who is "acting up" in a post normally gets it on a permanent basis when it becomes available, so the complainant should not be too disappointed if her male colleague was successful. The complainant says she did not believe the Principal was correct, and applied for the AP post. She says the Principal subsequently confirmed that seniority was more important, but said that on investigation it now appeared her male colleague was more senior than the complainant. The complainant says that this was the first time in over 23 years that this had been suggested, and she claims she got the definite impression the Principal wanted her to withdraw her application. The application was not withdrawn, and the complainant and her male colleague were interviewed for the post.
2.6 By letter dated 1 December 2003, the complainant was notified that she had been unsuccessful in her application. The letter said that in filling the post, the BOM followed procedures outlined in the Department of Education and Science's Circular PPT 29/02, with particular reference to Appendix 2 [Order of Seniority]. The letter also advised the complainant of her right of appeal.
2.7 On 8 December the complainant lodged an appeal with the Appeals Arbitrator for Voluntary Secondary Schools. Her letter said that the grounds of her appeal were that the process through which the appointment was made was incorrect because a faulty seniority list was applied when making the appointment and because the process was not in accordance with correct procedures. The complainant's submission to the Arbitrator indicated in some detail the nature of her objections to the BOM's decision. She asserted that changing the order of seniority that had been in place for over 23 years, on the eve of an appointment, flew in the face of natural justice. She suggested that the fact that the advertisement for the AP post included the SDP post indicated that the successful candidate was a foregone conclusion, and pointed out that the interview board may incorrectly have felt that the fact that her male colleague held the AP post on a temporary basis conferred some advantage in his candidacy. The complainant also strongly disputed the BOM's interpretation of Circular PPT 29/02, claiming that a correct interpretation would find that she continued to be the more senior teacher. Since both candidates had been found suitable, and the appointment was then determined on seniority, the complainant asserted she should have been appointed to the post.
2.8 On 13 December, the complainant wrote to the BOM in the following terms: "Your letter indicates that I was found suitable for the position but that the other applicant was considered by the Board of Management to be senior to me. After much deliberation, I find that I cannot agree with this. This letter is to formally notify the Board that I am appealing the decision. I regret that this matter has had to go to appeal but I believe that a significant injustice has been done and that ignoring it will be detrimental not just to me but also, ultimately, to the school itself."
2.9 Both parties made several written submissions to the Arbitrator and two oral hearings were held. The Arbitrator also contacted both the Joint Managerial Body (JMB) and the Association of Secondary Teachers Ireland (ASTI), by whom he had been jointly appointed, seeking clarification on the interpretation of the seniority provisions of Circular PPT 29/02. By determination dated 22 April 2004, the Arbitrator found that the BOM had correctly applied the provisions of Circular PPT 29/02. While he acknowledged the harshness of the finding for the complainant, he did not uphold her appeal.
2.10 The complainant says the appeal procedure constituted further instances of discrimination against her on the ground of gender. In the first place, the Arbitrator sat with two male advisers, one appointed by the JMB and the other by the ASTI. She says the fact that this was an all-male group was inherently discriminatory.
2.11 The complainant alleges that the Arbitrator's final determination focussed unduly on points favourable to her male colleague and ignored or minimised points favourable to her. She says that at one of the oral hearings the Arbitrator mentioned that he himself had previously worked as a teacher under the same type of contract her male colleague had during the disputed period. She says an excessive importance was placed on this contract in the determination, and suggests the Arbitrator's fellow feeling for his fellow man clouded his judgement and amounted to discrimination against her as a woman.
2.12 The complainant asserts that there were several departures from the Appeals procedure laid out in Circular PPT 29/02, including timeliness and consultation. She claims the determination did not address several specific issues elaborated upon in her appeal to the Arbitrator. She acknowledges that the Arbitrator was not her employer, but submits that the Employment Equality Acts have a broader focus. She refers to the reference in section 8 to prospective employee as an example of this broader focus. She says that she was directly affected by the Arbitrator's upholding of the BOM decision and indirectly affected by his silence on the bad practices employed during the appointment process.
3. SUMMARY OF THE FIRST-NAMED RESPONDENT'S CASE
3.1 The first-named respondent (the School) denies that it discriminated against the complainant on the ground of gender. It denies also the complainant's generalised comments about a culture of favouritism towards male teachers. It says the complainant's claim regarding the 2001 appointments is clearly out of time, but her allegations are so full of inaccuracies, assumptions and non sequiturs that they cannot be allowed to go unchallenged. The School says the complainant gives the impression that there were eight applications for the 2001 posts, and that two male teachers were appointed ahead of six female teachers, which the School says is incorrect.
3.2 The School says that no applications were initially received for the posts. As the deadline approached, the Principal issued a general invitation to apply at a staff meeting. She then spoke with the two most senior SDP holders, both female, who informed her they were not interested in applying. She had not had an opportunity to speak to any other teachers when two applications were received in her office. Both applications were from male teachers. Each was found suitable and each was appointed. The School says the complainant had the same opportunity as every other teacher to apply, but neither she nor any other female teacher did apply.
3.3 The School submits that the complainant's complaint regarding the 2003 appointment was also out of time, in that she was notified of the result of the interview on 1 December 2003 and did not refer her claim until 7 September 2004. The School also argues that the complainant agreed to be bound by the determination of the Arbitrator and that it is not permissible for her to subsequently raise allegations of discrimination under the Employment Equality Acts.
3.4 Notwithstanding these arguments, the School says that applications for the permanent AP post were received from the complainant and her male colleague following the advertisement in October 2003. It says the applicants were interviewed on 19 November by a board comprised of the Chair of the BOM, the School Principal and an independent Chair. The School says both applicants were asked the same questions, both professed themselves satisfied when asked at the end of the interview and both were found suitable for the post. The matter of seniority then became the deciding factor.
3.5 The School says that the method of calculating seniority is contained in Appendix 2 of Circular PPT 29/02. It points out that at the time of the interviews for the post in dispute, the method of calculation had recently been changed to take account of the enactment of the Employment Equality Act 1998 and the European Court of Justice decision in Hellen Gerster v Freistaat Bayern (Case C-1/95). It says this was the first time it had been required to implement the new rules, which included recognition of service other than permanent service.
3.6 Appendix 2 of the Circular provides that seniority is first determined by reference to the date of appointment to SDP. The complainant and her male colleague were both appointed to SDP on 11 February 1999. In the event that the date is the same, then seniority is calculated according to the following:
(D) (i) The order of seniority...shall be determined at the beginning of each school year by reference to qualified service in a permanent, temporary, substitute, eligible part-time or part-time capacity in the school as a secondary teacher.
(ii) A maximum of one year's credit may be granted in respect of any one school year. Seniority will be credited in full years only and will be computed as follows:
(a) Permanent, temporary, eligible part-time, substitute or part-time service which collectively or separately amount to 22 weeks or more in any one school year will reckon as a full year for seniority purposes
or
(b) permanent, temporary, substitute, eligible part-time or part-time service which, collectively or separately amount to 200 hours or more in any one school year will reckon as a full year for seniority purposes.
(iii) In the event of two or more [teachers] being equally qualified under (i), service in a permanent, temporary, substitute, eligible part-time and part-time capacity in a teaching post or posts in a second-level school or schools under the jurisdiction of the Department of Education and Science will be reckoned for seniority in accordance with (ii) above for the purposes of determining the seniority of those [teachers]. A maximum of one year's credit may be granted in respect of any one school year.
3.7 The School acknowledges that the complainant had always been considered senior to her male colleague, since she had been employed by the School at the beginning of the 1979-1980 school year, while he commenced employment towards the end of that school year. For the purpose of implementing the provisions of Appendix 2, the School says it sought clarification from the ASTI and the JMB regarding the proper calculation of the male colleague's service from March to May 1980. The response of both bodies was that if the male colleague had taught 200 hours, this counted as a full year.
3.8 The School says there continued to be a lack of clarity as to whether the calculation should be by reference to (a) the male colleague's contracted hours of 22 hours per week multiplied by the relevant number of weeks, or (b) the actual teaching hours multiplied by the exact number of days (that is, omitting bank holidays and holy days). The School says that application of method (a) meant that he evidently had more than the 200 hours required. Application of method (b) was significantly more complicated as it involved a reconstruction of hours actually worked twenty years earlier.
3.9 To ensure that there could be no doubt as to the proper application of the Circular, the School says the Principal carried out a mathematical counting exercise to determine how many hours the male colleague taught between March and May 1980. The School says it did not have complete records going back to 1980, nor did the Department of Education and Science have copies of timetables for that year. Therefore, the Principal used a timetable discovered on file to identify the classes inherited by the male colleague from his predecessor. Following a painstaking exercise counting actual hours taught, on the basis of the information available, the Principal worked out that the male colleague had worked in excess of 200 hours during the relevant period (copies of calendar used to calculate hours, 1980 timetable and teaching hours inherited by the male colleague from his predecessor submitted).
3.10 The School says that this calculation gave both candidates equal seniority. This meant that paragraph (D) (iii) of the Circular came into effect. As the male colleague was the only applicant to have teaching service in another school, he was deemed to be the more senior. The School says that, following notification to the complainant of the result, she pursued an appeal to the Arbitrator contending that the assessment of seniority by the School had been flawed as she was the more senior member of staff.
3.11 The School says that, in the course of the appeal process, some discrepancies emerged in the manner of calculation of the male colleague's hours, although it says the net effect was that he still had in excess of the requisite 200 hours. However, the School said the exercise had been surplus to requirements as it was concluded by the ASTI, the JMB and the Arbitrator that it was unnecessary to calculate hours actually worked when the male colleague had a written contract showing that he had been employed as a temporary whole-time teacher for 22 hours per week. The School says that this meant he had in excess of the 200 hours which counted as a full year's service.
3.12 The School notes that the complainant is significantly aggrieved by the change in her seniority, having always understood herself to be senior to her male colleague. It says, however, that this change was a direct consequence of the Employment Equality Act and the Gerster judgement, and did not arise as a consequence of a decision of the BOM to appoint the male colleague over and above the complainant notwithstanding their respective seniority. The School points out that many people in the public service have found themselves dropping down the seniority rankings in this way, but it says the purpose of the Circular is to ensure equality and prevent discrimination against temporary and/or part-time workers. The School says it has no competence to depart from the application of the Circular, and says that it has been confirmed by the independent Arbitrator (supported by the ASTI and the JMB) in its finding that the male colleague is the more senior of the two applicants.
3.13 Regarding other matters complained of by the complainant, the School acknowledges that the original advertisement for the post incorrectly included an advertisement for the male colleague's substantive SDP. It says this was a mistake which arose because the two posts had been linked on a temporary basis for two years as the male colleague was acting up temporarily in the AP post and another teacher was acting up in his SD post. The School says the Principal had become used to dealing with the posts together administratively for the purpose of submitting claim forms to the Department. It says this was a human error caused by pressure of work and was not motivated by any wish to favour the male colleague over the complainant. The School says that the Principal withdrew the advertisement as soon as she became aware of the error, and she advised staff that the SD post could not be considered until the outcome of the AP competition was known.
3.14 The School also acknowledges that the Principal told the complainant, prior to the interviews, that she understood that holding a post on a temporary basis would confer an advantage when applying for the permanent position. The School says that the Principal became aware almost immediately that this was an error when she consulted the Circular, and she informed the complainant accordingly. The School says this was an honest mistake which was corrected immediately. It was not intended to, and did not, have the effect of deterring the complainant from applying for the post.
3.15 The School adopts the Arbitrator's submission regarding the issue of naming him as a respondent in this complaint (see below). The School respectfully submits that the Equality Tribunal should find that it did not discriminate against the complainant on the ground of gender within the meaning of section (6) (1) and (6) (2) of the Employment Equality Acts 1998 and 2004, and that the complaint should be dismissed without further order.
4. SUMMARY OF THE SECOND-NAMED RESPONDENT'S CASE
4.1 The second-named respondent (the Arbitrator) says that the arbitration which he conducted was done pursuant to the terms of Circular PPT 29/02, which provides at paragraph 4.1 that
An Arbitrator shall be appointed by the ASTI and the JMB for a fixed two year renewable terms of office to deal with such appeals.
The Arbitrator says that the complainant was at all material times a member of the ASTI and accordingly consented to the arbitration process.
4.2 The Arbitrator points out that paragraph 4.12 of the Circular says
Without prejudice to the rights of any of the parties involved to have recourse to litigation, the decision of the Arbitrator shall be final and binding on all of the parties.
He says that he understands the reference to litigation to be a reference to the courts and not the Equality Tribunal. He says he is of the view that certain avenues may be open to the complainant by which she may seek redress for perceived wrongdoing on his part, but he submits the Equality Tribunal is not the correct forum.
4.3 The Arbitrator says further that he is incorrectly named as her employer in the complainant's referral of her complaint, and he says nothing could be further from the truth. He says he acted as an independent arbitrator, partly appointed by the complainant, to decide on an appeal by her against a decision of her employer. He says that to construe him in some way as being part of the decision whereby she did not get the promotion for which she applied would be to wholly misunderstand the purpose and function of his role. He suggests that for the Equality Tribunal to appear to validate such a view by admitting this complaint creates the spectre of jeopardising the impartiality of the appeals process and causing irreparable damage to a mechanism which exists by agreement between the parties and which has served the teaching profession well since its inception.
4.4 Notwithstanding the above arguments, the Arbitrator notes the complainant's reference to the two male advisers. He points out that there is no "appeal panel" as he is an independent Arbitrator who has access to two advisers. He says it is not within his bailiwick to choose the advisers, who are nominated by their respective bodies, and whose only role is to appraise him of the position of their respective bodies on issues he may require assistance on. He says the advisers did not speak at either of the oral hearings and he says he is of the view that, as she cannot condemn them using words they have uttered, the complainant has seized on their very presence as a basis for an allegation of discrimination on the Arbitrator's part. The Arbitrator suggests it ill behoves the complainant to seek to sully their contribution to the appeal with nothing more than the fact that they are male.
4.5 The Arbitrator denies that his former temporary status as a teacher had any bearing on the outcome of the appeal. He says that in fact he taught for six years in total, two years in a temporary wholetime capacity and four years in a permanent capacity, like the complainant. He suggests that the complainant simply makes this assertion without any substantiation, presumably in the hope that mere assertion of a point will give it credence.
4.6 The Arbitrator rejects the idea that the procedures laid down in Circular PPT 29/02 were not adhered to. He says his request for clarification from the ASTI and the JMB, while uncommon, is specifically provided for in Circular PPT 29/02. He says as a consequence of embarking on this course of action, there would indeed be a knock-on effect on the length of time the appeal would take.
4.7 The Arbitrator notes that the complainant asserts that the determination focussed on points that were favourable to her male colleague and not to her. He says this is not so, and that the determination focussed on the matters which were of significance to a determination of the point at issue, namely seniority, and this was the context in which he raised certain queries with the ASTI and the JMB. The Arbitrator says that these queries were ultimately determined to allow the male colleague the benefit of a year of service which had been in doubt. He says that his letter to the JMB and the ASTI made no reference to the gender of the complainant or the male colleague. He further points out that the mechanism for determination of seniority provided in Appendix 2 to Circular PPT 29/02 makes no reference, either covert or overt, to gender.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The complainant alleged that the respondents discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Acts 1998 and 2004. Section 6 of the Acts provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, including gender. Section 8 provides that
(1)In relation to-
...(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
The complaint against the Arbitrator
5.3 The first matter I wish to consider is whether the Arbitrator is correctly named as a respondent. The Arbitrator argued that for the Equality Tribunal to validate the complaint by deeming it admissible could jeopardise the impartiality of the appeal process. It is not in dispute that he was not the complainant's employer.
5.4 I note that that the Arbitrator is jointly appointed by the JMB (the employer's representative body) and the ASTI (the complainant's representative body). His function was to hear the arguments supporting each side's position, seek such advice as he saw fit and then come to an independent conclusion, which is binding on both parties. It appears to me to be clear that he is an impartial officer who cannot be identified as more closely associated with the employer side that the employee side.
5.5 The Acts provide at section 13 that certain other bodies may not discriminate. The section says
A body which -
(a) is an organisation of workers or of employers,
(b) is a professional or trade organisation, or
(c) controls entry into, or the carrying on of, a profession, vocation or occupation,
shall not discriminate against a person in relation to membership of that body or any benefits, other than pension rights, provided by it or in relation to entry to, or the carrying on of, that profession, vocation or occupation.
5.6 The Labour Court considered the application of this section in the case of Irish Medical Council and Catherine Flavin O'Loughlin (Determination No 049), wherein the Council argued that it was not amenable to investigation by the Court as it was not an employer, an employment agency or a body of the type complemented by section 13. The Labour Court declined to accept this contention, saying that while "...the respondent does not control entry to the profession of medical practitioner, it does control the carrying on of that profession in that qualified doctors are seriously restricted in their professional practice if they are not registered by the respondent."
5.7 The Arbitrator clearly does not fall within the definitions contained in section 13 (a) or (b). The remaining question, therefore, is whether he falls within the definition of section 13 (c). Entry into the profession of teaching is governed by the attainment of specified qualifications and the achievement of a post, neither of which is within the remit of the Arbitrator. Given the specific nature of his role, described in 5.4 above, I do not find that he controls the carrying on of the profession of teaching in the generalised sense that seems to be envisaged in section 13 (c). By contrast with the situation in the Irish Medical Council case, a teacher could clearly have a lengthy and successful professional career without ever having contact with the Arbitrator. In the circumstances, I am satisfied that the complaint referred against him is not a valid complaint within the terms of the Employment Equality Acts 1998 and 2004.
The complaints against the School
5.8 Section 77 of the Acts states
(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director...may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction...
5.9 As the Labour Court pointed out in the Irish Medical Council case, the Court "...is a creature of statute and can only exercise such jurisdiction as is conferred on it by statute....The time-limit prescribed by section 77 (5) of the Act is in the nature of a statutory limitation period. Where a complaint is presented outside that period the statutory limitation can be pleaded by the respondent and, as a matter of law, provides a complete defence to the complaint."
5.10 The first appointments complained of by the complainant were made in September 2001, while her referral to the Equality Tribunal was in September 2004, some three years later. The complaint regarding these appointments is accordingly out of time, without possibility of extension. These appointments can therefore not be considered further. However, for the avoidance of doubt, I am satisfied that the complainant could not have maintained a claim of discrimination in relation to an appointment process for which she had not applied.
5.11 The complainant's referral form, received by the Tribunal on 7 September 2004, listed the last occurrence of an allegedly discriminatory act as May 2004. When questioned at the hearing, the complainant indicated that this was the date on which her male colleague had been appointed to the disputed post, following the Arbitrator's determination.
5.12 The interviews for the AP post were held on 19 November 2003. The date on which the interview board reached its decision is not clear from the evidence submitted. However, it is clear that the complainant was notified by letter dated 1 December, presumably received on 2 or 3 December, that she had been unsuccessful. I am satisfied that the allegedly discriminatory act, that is the decision of the interview board, occurred no later than 3 December. The Arbitrator's determination did not constitute a new decision by the interview board, and the eventual appointment of the male colleague was the culmination of the appointment process as opposed to being another incident which could in itself constitute a separate cause of action. The six-month time limit, therefore, concluded no later than 1 or 2 June 2004, and the complaint is out of time.
5.13 No application was made by the complainant for an extension of the time limit, but she was asked at the hearing if she had any evidence for reasonable cause to extend the time limit. It was submitted on her behalf that she had been told that she could not refer her claim to the Tribunal until the appeal process had concluded. The source of this incorrect information was not indicated. It should be noted that the Arbitrator's determination issued on 27 April 2004. Even if the complainant had understood she should wait for the determination, her referral could have been lodged within the time limit if she had acted promptly. Instead, she waited for almost four and a half months before referring her complaint. Consequently, the complaint is out of time and must be dismissed.
6. DECISION
6.1 Based on the foregoing, I find that
(i) the complaint against the Arbitrator is not a valid complaint within the terms of the Employment Equality Acts 1998 and 2004; and
(ii) the complaints against the School regarding both the 2001 and 2003 appointments are out of time.
_____________________
Anne-Marie Lynch
Equality Officer
19 January 2007