O' Conghaile
(represented by ASTI)
-v-
Mercy Mean Scoil Mhuire
(represented by Ms. Karen O' Driscoll B.L., instructed by Arthur O' Hagan Solicitors)
1. CLAIM
1.1 The case concerns a claim by Ms. Mary Francis O' Conghaile that Mercy Mean Scoil Mhuire, Galway discriminated against her on the age ground in terms of section 6(2)(f) of the Employment Equality Act 1998 in contravention of section 8 of the Act in relation to promotion to the post of Principal.
2. BACKGROUND
2.1 The complainant applied for the position of Principal and she submits that she was asked a discriminatory question at interview. She was unsuccessful in her interview. The successful candidate was younger. She alleges that she was discriminated against on the age ground. The respondent denies the allegation of discrimination and submits that the appointment to the post was made on merit alone and not on any discriminatory ground whatsoever.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 29 November 2004. On 8 May 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 16 June 2006 and from the respondent on 17 January 2007. A joint hearing of the claim was held on 17 September 2007. Supplementary submissions were received from the respondent on 24 October 2007 and from the complainant on 2 November 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant had been teaching at the school for 36 years at the time of the interview on 1 June 2004. She was an Assistant Principal post holder and she had a high profile working with energy and enthusiasm in many areas of education both within and outside her contractual responsibilities. She believes that she was qualified for the position of Principal.
3.2 At the interview for Principal, she was asked by Mr. D, Chairperson of the Selection Committee why she was applying for the job at this time in her life. She believes that this question implied that she had to justify her interest with regard to her age and it was interpreted by her to reveal prejudice by the selection committee. While retaining her outward composure, she was thrown by the question and grappled with her response. She replied to the selection committee by giving details of her personal life which would justify her application at that time in her life because she was led to believe that this was expected of her. She submits that her responses in the rest of the interview were coloured by the unfortunate event.
3.3 The complainant refers to the Board of Management Manual 2003 where the interview structure is outlined. She submits that she was not questioned on her experience and she was not questioned on the role of the Principal or her vision for it. This led her to believe particularly in the context of the question on her age that her application was not being taken seriously. Because of her surprise at their attitude towards her age, she decided to request information from the Chairperson of the interview board in relation to the interview including feedback and marking of her performance. She submits that the material received does not conform to the Board of Management Manual. She submits that she subsequently sought the minutes of the Board of Management meeting which related to the appointment and she was told by the then Principal that the Board did not ratify the decision of the selection committee.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent denies that the complainant was asked why she was applying for the job at this time of her life or any discriminatory question at interview. A structure was prepared in advance for the interviews and each candidate was asked a series of questions under different headings. Towards the end of each interview, the Chairperson, Mr. D asked each person four questions the first of which was:
"Can you offer the Selection Committee a brief outline as to why you feel, at this stage in your career, that you are the most suitable candidate for the position of Principal?"
The question was designed to enable each candidate to present a clear account of his or her motivation in applying for the post. It is rooted in the candidate's general assessment of his or her own career path. It is submitted that this was a perfectly reasonable and justifiable question to put to each candidate and not at all discriminatory on grounds of age or otherwise. The complainant has asserted that given her age, the question required her to justify her interest in the post with regard to her age. The respondent rejects that the question could be interpreted to reveal prejudice by the selection committee.
4.2 There was no requirement on the complainant to justify her interest having regard to her age. In common with the other candidates, she was asked a perfectly legitimate question with regard to her career trajectory. In the circumstances, the suggestion that the question revealed prejudice on the part of the selection committee is wholly unsustainable.
4.3 In addition to Mr. S who is a serving school Principal, the selection board included Ms. K, Sr. MC and Mr. D, each of whom is a former school Principal. Mr. D is the Education Director of the Mercy Education Office and is an experienced and conscientious interviewer. He is a former school Principal with considerable experience of staff recruitment. He is a graduate member of the Chartered Institute of Personnel Development and is well familiar with all aspects of employment legislation, in particular the Employment Equality Acts. He is fully aware of the necessity to ensure that interviews are fair to all candidates and that questions ought not to be asked to any one candidate which are not also asked to other candidates. Ms. F, a solicitor was also a member of the board. Each member of the board has substantial experience in conducting interviews.
4.4 The board was fully satisfied that in view of academic qualifications, his record of professional development, his extensive management experience and his performance at interview, Dr. L was the right person to appoint to the position. The sole basis for the appointment in this case was merit. The selection board considered each candidate objectively on the basis of their applications and performance at interview. All of the relevant documentation has been furnished to the Equality Officer. The documentation demonstrates that the selection board approached the task fairly and objectively. The respondent takes a fully transparent approach by providing information on request to candidates, including the complainant. In addition, Mr. D offered the complainant his mobile number should she wish to discuss any aspect with him. With regard to the complainant's allegation that she was not questioned on her experience or CV or on the role of Principal, the interview records demonstrate clearly that this is not accurate.
4.5 The respondent submits that the complainant has failed to establish a prima facie case of age discrimination and her claim must fail. The respondent submits that in any event, there are clear, reasonable and objectively justifiable reasons for the non appointment of the complainant as is clear from the documentation furnished.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to promotion to the post of Principal. I will consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of discrimination
5.3 The Labour Court in the case of Flexo Computer Stationery Limited v. Coulter stated:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by the Court in Mitchell v Southern Health [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."
The Labour Court subsequently stated in DPP v. Sheehan :
"What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman (Wallace v. South Eastern Education and Library Board [1980] IRLR 193). It can also arise from an unexplained procedural unfairness in the selection process."
5.4 The complainant in this case submits that she was qualified for the position of Principal and that she was asked a question at interview which revealed an age prejudice by the selection committee. She submits that she was not questioned on her experience nor questioned on the role of Principal which led her to believe that her application was not taken seriously. The complainant alleges that she was asked the question as to why she was applying for the job at this time in her life. The respondent submits that the Chairperson of the interview board asked:
"Can you offer the Selection Committee a brief outline as to why you feel, at this stage in your career, that you are the most suitable candidate for the position of Principal?"
It submitted that the question was designed to enable candidates to present a clear account of their motivation in applying for the post and was rooted in the candidate's general assessment of their own career path. The respondent submitted in evidence a document listing the questions asked under various subjects such as Introduction, Ethos, Management and Leadership, Knowledge of Current Educational Environment, Role of Deputy Principal and Conclusion questions. The respondent submitted that the list of questions was drawn up after the board met for the shortlisting process and immediately after that process was concluded. It submitted that the reference to the heading of 'Deputy Principal' on the document was an error and it should have referred to 'Principal'.
5.5 The complainant alleges that she was asked why she was applying for the job at this time in her life whilst the respondent alleges that the complainant was asked why she felt, at "this stage in your career" that she was the most suitable candidate for the position. The Labour Court in the case of Revenue Commissioners v. O' Mahoney & ors ADE/02/9 Determination No. 033, found that a question was asked of the complainant in the following terms "What (sic) are you going for this job at this stage." It stated:
"Turning to the import of the question, the Court finds it difficult to accept that it could have any meaning other than that attributed to it by the second named complainant. The Court is satisfied that it did relate to his age.
It is not suggested that the other complainants were asked a similar question at interview. Nonetheless the Court accepts that apart from the question being offensive and discriminatory in the case of the person to whom it was put, it also indicates that, probably subconsciously, the age of candidates had become a matter of some relevance in the selection process."
The European Court of Justice has held in Finanzamt Koein v. Schumacker [1995] ECR 1-225, that it is settled law that discrimination can arise not only through the application of different rules to comparable situations but by the application of the same rule to different situations. Whilst the respondent in this case submitted that the same questions were asked of all candidates, the question could have had a different significance for each of the candidates depending on the particular stage of their careers at which they found themselves.
5.6 The Department of Education and Science Circular 4/98 on Revised in-school management structures in secondary schools provides at paragraph 1 that the "appointment of Principals will be on the basis outlined in Articles 20 and 21 of the Articles of Management for Catholic Secondary Schools." Article 21 of the Articles of Management provides, inter alia, that
"The Board of Management shall publicly advertise the post and set up a Selection Committee consisting of two nominees of the Trustees, two nominees of the Board of Management and an independent external assessor to be agreed on by the Board. ...."
The minutes of the Board of Management meeting dated 26 April 2004 in relation to the matter state:
"Important function of this meeting was nomination of two members for Selection Committee (5 Members). Names that surfaced were: [Sr. MC, UF, BK, Sr. MH, ME, MR, EMcD, PS]. These were to be approached. It was also stated that an independent assessor would be agreed on by the Trustees and the Board of Management when the other four members were appointed."
It appears that it was the function of the Board of Management to appoint the independent external assessor and it was unclear why it was decided that the Trustees would become involved in the matter. A member of the Board of Management gave evidence at the hearing that the selection of an independent assessor was approved by the Board and Trustees were consulted.
5.7 In this particular case, two sets of notes were submitted in respect of the complainant. The notes made by the Chairperson were submitted together with a very short summary sheet of notes which was signed by all five interviewers. In respect of the successful candidate, only the notes made by the Chairperson of the interview board were submitted and no explanation was provided by the respondent as to why the summary sheet was not provided other than that everything in the Board's possession in relation to the interviews was made available to the Equality Officer. The respondent submitted that all five persons on the interview board had an individual marking sheet and that all marked individually and independently, however, those marking sheets were not retained. That is the case notwithstanding that the respondent was on notice that the complainant had an issue with the outcome as very shortly after the interviews, the complainant wrote to the Chairperson of the interview board seeing feedback on and marking of her performance at interview. The respondent stated in its written submission that the "marking sheets were forwarded to the complainant in response to her request on 22 June 2004."
The Labour Court has stated:
"...., this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes."
The Labour Court has stated:
"A failure to keep records of interview process, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination."
5.8 The complainant alleges that she was not questioned on her experience or the role of the Principal in the particular school. One of the interview board members submitted that the questions on Principal related to the general position of Principal and not solely to the post of Principal of the school in issue. The very limited notes submitted indicate that the complainant was questioned on the role of Principal though whether questions were asked on experience is less clear. The summary notes made by the chairperson and signed by the five board members state that the complainant had "Limited experience of management". The issue of the conduct of interviews and whether the questions asked by the Chairman of an interview board related to the skills that he had taken responsibility for were considered by the Labour Court in an age discrimination case. It stated:
"The Court has given careful consideration to the evidence in relation to the conduct of the interviews. There was, to say the least, a sharp difference of recollection and perception as to how the interviews were conducted between the complainants who gave evidence on the one hand, and the members of the interview board on the other. The Court believes that much of the criticism of the process which was voiced by the complainants may have been influenced by their understandable disappointment at the result. For this reason the Court believes that it should approach this evidence with caution."
Whilst the evidence of the complainant may be approached with caution, the very limited notes retained by the respondent make it difficult for the respondent to rebut the complainant's claim in this regard.
5.9 As stated at paragraph 5.4 above, the document headed "Interview Structure" indicates that questions were asked under the headings of Management and Leadership, Ethos, Knowledge of Current Educational Environment and Role of the Deputy Principal. The marking sheets indicate that candidates were marked under the headings of Education, Management Post/Management leadership, Ethos, Current Educational Environment and Role of the Principal. The marking of candidates under the criterion of Management Post/Management leadership was changed on the day immediately prior to interviews on the suggestion of one of the interview board members. The original marking sheet provided for 5 marks for having a Special Duties post and a maximum of 10 marks for having an Assistant Principal post. An amendment was made to the marking sheet to take into account that the successful candidate held a Principalship in another school and should therefore receive more marks than those provided for as the post held by him was higher. The revised marking sheet subsequently provided that no marks were awarded for having a post per se. Following the amendments made, the complainant did not receive any marks for having an Assistant Principal post of responsibility. There were also two other post of responsibility holders who did not receive marks for holding posts as well as a Deputy Principal Postholder who also did not receive any marks. Whilst there may have been an attempt to level the playing field, the amendments made to the marking sheet prior to the interviews indicates that the successful candidate's application was uppermost in the interviewers' minds. It is also the case that another candidate (who was also older than the successful candidate) held a Deputy Principalship and should also have received higher marks than those permitted by the marking sheet, however, no reference was made to levelling the playing field for other candidates vis a vis her.
5.10 The interview structure document detailing the questions asked under the various areas of assessment indicates that questions were asked under the 'Role of the Deputy Principal' and in four out of seven questions under that area, reference is incorrectly made to 'Deputy Principal' and not 'Principal'. In total in that particular area of questioning, reference is made to 'Deputy Principal' six times. In the final area of questioning by the Chairperson, reference is again made to 'Deputy Principal'. The respondent submitted that it was a typographical error. I consider that issues arise in relation to the application of the particular document at interview and in particular, why an error which occurred six times in one area of questioning was not noticed by the person asking questions under that heading or indeed noticed by one of the other interview board members. Indeed, the respondent's representative advised by letter dated 6 September 2007 that it had "just become aware of a typographical error at page 2 of the submission on behalf of the respondent. ..... The question refers in error to the position of Deputy Principal."
5.11 On the application forms for the post, the candidates were requested to provide contact details for two people who would supply references "in relation to your professional performance." A four page form requesting considerable information was then sent to the referees. In relation to the role of references in the assessment process, it was clarified at the hearing that in the event that at the end of the process, two or three candidates were close in the judgment of the panel, references would be used as an additional source of information. It was further submitted that in this instance, the successful candidate was demonstrably ahead of other candidates so references were not as important as they might have been in another interview. In circumstances whereby considerable information was sought from referees, it would seem in the interest of fairness and transparency that at the outset of the selection process, the amount of marks to be awarded on foot of such a reference would be determined. I must point out that it is also of concern to me that the referee is also asked to "comment on the candidate's health" and I consider that this is an inappropriate issue for any referee to comment on and it would be prudent to delete any such statement from the reference form in the future.
5.12 The Labour Court has stated in South Eastern Health Board v. Brigid Burke
This Court has consistently commented on the need for Employers conducting interviews to have openness and transparency in their selection process. See in particular Gleeson v the Rotunda Hospital DEE00/3. Where in a case such as this the interview committee met in advance, looked at the two Curriculum Vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. ...... On the basis of the evidence, and for reasons already referred to, Court is satisfied that the selection process was conducted in a manner which fell short of the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances.
In the instant case, I have considered the following factors (i) that a considerably younger candidate than the complainant was appointed (ii) the question asked at interview, (iii) the change in the marking sheet (iv) the number of references to Deputy Principal in the list of questions asked at interview, (v) the failure to retain all notes (vi) the general lack of transparency including the application of references. Taking into account all of the factors, I find that the respondent has failed to rebut the complainant's claim of discrimination. I therefore find, on the balance of probabilities that the respondent discriminated against the complainant on the age ground in relation to the post of Principal in 2004.
6. DECISION
6.1 On the basis of the foregoing on the balance of probabilities, I find that the respondent discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to appointment to the post of Principal.
6.2 In accordance with section 82 of the Employment Equality Acts 1998-2007, I hereby order that the respondent:
(i) pay the complainant the sum of €10,000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination in the selection process for the post of Principal and does not include any element relating to remuneration (and is not therefore taxable):
(ii) adhere to good practice selection procedures in all future promotions including applying a formal marking system agreed prior to any consideration of CVs, ranking candidates by reference to that marking system and retaining all notes.
__________________
Mary Rogerson
Equality Officer
21 November 2007
1 Determination No. EED0313 9 October 2003
2 Determination No. EDA0416 14 December 2004
3 Department of Health & Children v. Gillen EDA0412 27 July 2004
4 The Department of Health and Children v. John Gillen EDA0412 27 July 2004
5 Revenue Commissioners v. O' Mahony & ors ADE/02/9 27 January 2003
6 ADE/03/7 Determination No: EDA041