FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MOATE COMMUNITY SCHOOL (REPRESENTED BY ARTHUR O'HAGAN SOLICITORS) - AND - MICHAEL MORIARTY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of The Employment Equality Act, 1998. Dec-E2006-053.
BACKGROUND:
2. A Labour Court hearing took place on the 25th September, 2007. The following is the Court's Determination.
DETERMINATION:
This is an appeal by Mr. Michael Moriarty (the Complainant) against Moate Community School (The Respondent) against the decision of an Equality Officer in a claim alleging discrimination on the age ground. Mr. Moriarty claimed that his non selection in a competition for a promotional post of Assistant Principal held on 23rd January 2004 amounted to discrimination on grounds of age, in terms of Section 6(2)(f) of the Employment Equality Act 1998 (The Act) and in contravention of Section 8 of that Act.
The Complainant further complained that he was victimised for having made a complaint to the Equality Tribunal under the Employment Equality Act, 1998.The Complainant referred complaints of discrimination and victimisation to the Equality Tribunal pursuant to s 77 of the Act. The complaints were investigated by an Equality Officer who found against the Complainant. The Complainant appealed to this Court. At the Court hearing on 25th September 2007, Mr. Moriarty withdrew his appeal concerning his claims of victimisation under the Act.
The Complainant was 54 years of age at the time of the interview for the post of Assistant Principal in January 2004 and the successful appointee was 37 years of age.
The Complainant’s Case
Mr. Moriarty submitted that there is clear evidence of discrimination on the grounds of age arising from the cumulative effects of a number of factors. These are as follows:
-A mismatch between the agreed marking system criteria and those actually applied in practice.
-A lack of transparency in the interview process.
-The fact that age discriminatory questions were asked of the Complainant at interview.
-Statistics show a clear pattern of age discrimination in the School.
-The fact that there is a clear policy of favouring younger members of staff in the school.
-The possible grooming of younger candidates.
The Complainant contended that he was better qualified and had greater experience than the successful appointee, he held that he had far greater educational and work experience; he was a member of more educational and professional bodies and had made a major contribution to the School in the areas of fundraising and clubs. He pointed out that the successful appointee’s experience was primarily at Primary School level. He stated that he had attended more In-Service Courses than the successful appointee. In particular he referred to the fact that he held an Honours Masters Degree in Education from Trinity College Dublin, and had sixteen years more experience working in Moate Community School than the successful appointee.
The Complainant cited a number of cases to substantiate his case. He relied onGillen v Department of Health[2005] ELR 141,Citibank v Massinde Ntoko[2004] 15 ELR 116, andMonaghan VEC v CarrollDetermination EDA 0415 for the Court’s interpretation of the appropriate application of the law on age discrimination.
The Respondent’s Case
Counsel for the Respondent Ms. Bolger denied the allegation of discrimination on the age ground and submitted that the Complainant had not adduced any, or any sufficient evidence, to discharge the burden of proof. She stated that the appointment in question was filled in accordance with the terms of the Department’s circular letters and pursuant to procedures agreed between the teachers unions, schools’ management authority and the Department.
Ms Bolger maintained that the outcome of the interview was entirely on the basis of the non discriminatory and unanimous view of the selection board that the successful appointee was the superior candidate for the position based on her curriculum vitae, application form and her performance at interview.
The Responded provided the Court with copies of Circular Letters 15/97; Circular Letter 32/00 and Circular Letter PPT07/02 all of which outline the Department of Education and Science’s procedural guidelines for Boards of Managements of Community Schools, inter alia,on the Appointment of Assistant Principal’s. It was also supplied with each of the Interview Board’s marking sheets and the overall marking sheets used for the competition. Contemporaneous notes were taken by the Secretary of the Interview Board (who was not one of the interviewers) during each of the interviews. These notes were made available (by the Complainant) to the Court.
Ms. Bolger drew the Court’s attention to a number of cases in support of its position,Gillen v Department of Health[2005] ELR 141,Board of Management Ballinrobe Commmunity School v Walsh, Jackson, & ActonDetermination No: EDA065.
The Evidence
Two members of the Interview Board, Sr. Rowan and Mr. Mac Gleannain, gave evidence to the Court – the remaining two members could not do so for health reasons. The Principal of the School also gave evidence. The Complainant presented his own case at the hearing and was afforded the opportunity to cross-examine the witnesses.Sr. Rowan’s Evidence
Sr. Maeve Rowan gave evidence to the Court on behalf of the Respondent. She told the Court that she had been a teacher in the school for 27 years and Assistant Principal for 2 years, that she was currently Trustee on the Board of Management and was Chairman of the Selection Board for the January 2004 Assistant Principal post. She stated that on the eve of the interviews, a meeting was held with all members of the Interview Board present to: elect a Chairman; discuss format/timings of interviews; agree a marking system in line with the Department’s guidelines and agree on areas of questioning for each member of the Board. She said that the Interview Board examined the application forms and the curriculum vitae before the interviews commenced.
Sr. Rowan said that she was very familiar with anti-discrimination legislation, always adhered to Department Regulations, and denied that age played any factor in the selection process. She explained that in addition to her role as Chairman of the Interview Board, she asked questions on the candidates’ Duties and Posts of Responsibilities.
Sr. Rowan stated that the successful appointee was interviewed first, she found her to be a very good candidate, very enthuastic, she was crystal clear in her answers, and she had a broad vision of education in general.
She said Mr. Morarity had started his interview well but then went off track and came back towards the end. Overall she said that he did a good interview but that another candidate did an exceptionally better interview.
She explained that without entering into any discussion with each other, each member of the Board marked their sheets, and called out their marks to the Secretary for collation.
Sr. Rowan told the Court that to the best of her knowledge no other member of staff had made an allegation of age discrimination against the School nor was she aware of any member of staff making a reference to a perception of bias towards younger members of staff.
Mr. Mac Gleannain’s Evidence
Mr. Sean Mac Gleannain told the Court that he retired from the Department of Education and Science in 1997. He explained that most public schools had a Department representative on interview boards, he was appointed to the Moate Community School Interview Board and was on the Board for the Assistant Principal competition in January 2004.
He said that he was very familiar with anti-discrimination legislation, he was still actively working in his early 70’s and considered himself to be a living example that older people can contribute effectively, he said, “I would be the last person who would discriminate on age grounds”.
His role was to ask questions concerning curricular issues. He recounted the interview and said that the successful appointeewas an excellent candidate; she had gained a lot of experience both in the school and in her work with the credit union, and was very familiar with the area of finance. She outlined how she had co-ordinated/ allocated resources obtained from the Department, in an efficient manner. He said that Moate Community School was a very big school and the post of Assistant Principal required an active management team, someone who could undertake a variety of tasks. He said that she had demonstrated how she was doing a job and he was satisfied, taking all matters into account, that she was the most suitable candidate for the post.
He stated that Mr. Morarity had demonstrated a good knowledge of his own subjects. There were mistakes in his CV, he had listed teaching Science for 32 years, yet when questioned about the subject, he said that he was no longer teaching Science, but was now teaching Maths. Mr. Mac Gleannain said that he was surprised when Mr. Morarity did not know about the Science curriculum and was not a member of the Maths Teachers Association. In his view this was probably the best Teacher’s Association to be a member of. He said that in contrast to the successful candidate who listed a long list of service/experience and a variety of the tasks she had undertaken, Mr. Morarity was unable to expand on the experience he had gained.
Mr. Mac Gleannain also told the Court that to the best of his knowledge no other member of staff had made an allegation of age discrimination against the School. Nor was he aware of any member of staff making a reference to a perception of bias towards younger members of staff.
Mr. Kevin Duffy’s Evidence
In his evidence to the Court Mr. Kevin Duffy, Principal of the School since 1996, and Principal of another school since 1986, emphatically denied all allegations of discrimination. He stated that the school catered appropriately for older members of staff. He told the Court that the School had a mentoring programme to assist newly qualified teachers and acknowledged that he had in the past praised younger teachers in that regard. However, he stated that the school also has a number of different structures to assist more experienced teachers, particularly in the area of up-skilling.
He told the Court that due to the amalgamation of various schools in 1998, it became necessary at a later date to collect data from members of the staff for personnel records and this included a question on details of “date of birth”.
He explained to the Court that the School Development Planning Initiative Committee was originally established following nominations from various constitutent parts of the school and was held during class time. However, due to the work of the committee it eventually became necessary to hold such meetings during class time; therefore it was open to volunteers to join the committee and use their free periods for meetings. He denied that the Committee was a gateway to promotion and stated that the two members of the Committee named by the Complainant, in support of this contention, were not in fact Assistant Principals.
He had set up the Interview Board for the impugned competition in January 2004; he acted as Secretary to the Board and took notes of the interviews on the day. He told the Court that at the completion of the interview stage each member of the Board announced their marks, which he collated to establish the order of merit and the final marking sheet was signed by each member of the Board.
He explained that the application form used for the competition was the standard form.
He also told the Court that no other member of staff had made an allegation of age discrimination against the School nor was he aware of any member of staff making a reference to a perception of bias towards younger members of staff.
Outcome of the Selection Process: ScoresThe marks awarded to the successful appointee and the Complainant were as follows:
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Conclusions of the Court
It is not the Court’s function to determine who was the most meritorious candidate for the disputed position. Rather, its role is to establish if the selection was tainted by unlawful discrimination. In that regard, it is generally acknowledged that cases of alleged discrimination present special problems of evidence and of proof. Those who discriminate unlawfully rarely do so overtly and do not leave evidence of the discrimination within the complainant’s power of procurement (seeNtoko v Citibank [2004] 15 ELR 116).
Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.
Burden of Proof
It is accepted that if the Complainant makes out a prima facie case of discrimination the burden of proving the absence of discrimination shifts to the Respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court inTeresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the Complainant to establish, as a matter of probability, the primary facts upon which he relies. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the Respondent.
InDepartment of Health and Children v John Gillen[2005] ELR 141,the Court held that in cases involving both the Equality Tribunal and the Labour Court, a number of tests have been used in considering whether to draw an inference of age discrimination. Generally it is a combination of factors, which has convinced the Tribunal or the Court that an inference of discrimination is appropriate.
The Complainant had submitted that he was discriminated against arising from the cumulative effects of the number of factors. The Court will now proceed to examine these allegations.
THE SELECTION PROCESS
The Complainant submitted that the Respondent discriminated against him on the grounds of age, in the following manner:
-A mismatch between the agreed marking system and those actually applied in practice.
-A lack of transparency in the interview process.
-The fact that age discriminatory questions were asked of the Complainant at interview.
The Complainant submitted that the interviewers did not use the marking sheets provided for such use. He held that the marking sheets, vertical and horizontal, contained different numbers of categories and contained marks which were changed in some instances by the interviewers. Furthermore, he contended that negative, closed questions were asked and that the interviewers did not exercise the objective criteria, which existed for marking candidates at interview but decided marks on “an impression or a whim”.
He contended that one of the interviewers Mr. Mac Gleannain incorrectly informed him that there were three hours allowed off teaching to carry out the work associated with the post of Assistant Principal. This was misleading and put him on the defensive. He stated that the successful appointee was not given this information, as could be seen from the minutes of the interviews. He claimed that Mr. Mac Gleannain was asking questions to which he knew the answers would be negative and consequently gave him no marks for those areas.
The Complainant stated that Fr. O’Reilly asked a discriminatory question at the interview when he asked what professional development he had undertaken in the “last three years” and maintained that this question had not been asked of the successful appointee. He also held that in the briefing notes drawn up by the interview board before the interview that the phrase “ particularly recent” was used.
The Complainant claimed that the marks of the various members of the Interview Board in relation to the third criteria, “Experience of a professional nature in the field of education and involvement in the school”were inconsistent.
He stated that it seemed extraordinary that the successful appointee, who was less qualified, less experienced and who had made less contribution to the school could achieve 54% more marks than him. In this regard he citedMonaghan VEC v CarrollDetermination EDA0415, where the Court held:
- “It is difficult for the Court to accept the respondent’s contention that the complainant’s failure on the day was due to the fact that she did a poor interview, when her qualifications and experience were essentially equivalent to the other candidates…...”
Ms. Bolger denied that age discriminatory questions were asked at the interview. She maintained that Fr. O’Reilly’s question relating to professional development in the last three years was perfectly reasonable considering the major changes, which have taken place in Education in that time and she said that all relevant experience was taken into account by the Selection Committee. Furthermore, she defended Mr. Mac Gleannain’s position stating that he had made a genuine error, which was not in any way linked to the Complainant’s age, and held that the Complainant had not suffered any detriment as a result of this error.
Court’s Findings
Having examined the Criteria set out in the Department’s circulars the Court is satisfied that the agreed marking scores adopted by the Interview Board were in accordance with the criteria laid down. The Court notes that the Board had no discretion in relation to the marks awarded under“Service to the particular scheme” (30% of marks) these marks were scored on the basis of the longest serving candidate and were calculated independently of the Interview Board. Whereas,
the Board had some discretion in relation to the marks to be awarded under the headings“Capacity of applicant to meet the needs of the school”(50% of marks) and “Experience of a professional nature in the field of education and involvement in the school”(20% of marks).
Under“Capacity of applicant to meet the needs of the school”,the guidelines outlined the criteria for dissemination of marks, as follows;
- a) The selection Committee will assess the ability of the candidate to perform a range of duties.
b) In evaluating the capacity of the applicant to meet the needs of the school, the performance of the candidate to date may be assessed; the candidate may present evidence or record of such performance.
c) In demonstrating his/her ability to meet the needs of the school, the applicant may propose what he/she perceives to be the needs of the school in the context of the post.
d) The selection Committee may seek to assess the reaction of an applicant to certain situations, which might reasonably be expected to be encountered in the performance of the duties associated with the post.
e) Case made at interview would include the general professionalism of the candidate as presented at interview. It would include the presentation of the candidate himself/herself, the presentation of the application form/CV etc.
The Interview Board decided to break down the 50 marks evenly for each of these criteria and awarded 10 marks to each of the above.
Under “Experience of a professional nature in the field of education and involvement in the school”the guidelines outlined the following criteria for dissemination of marks, (the marks decided upon by the Board are shown in brackets) as follows:
In-school experience e.g.
a) Contribution of the applicant to the school - (4 marks)
b) Experience as a post holder in a temporary or permanent capacity – (2 marks)
c) Experience as co-coordinator of a school project – (4 marks)
- Out of school experience e.g.
b) Subject Associations – (1 mark)
c) Professional Associations – (1 mark)
d) Work Experience – (4 marks)
e) *Special Qualifications - (2 marks)
*The guidelines had provided for “Course Committee Membership”, however, the Selection Committee changed it to “Special Qualifications”. The Complainant received the maximum award under this criterion and raised no objection to the change made. The Court notes that the successful appointee received no marks under this criterion.
Having examined the breakdown of marks under the various headings the Court notes that under the first criteria,“Capacity of applicant to meet the needs of the school”,the Complainant scored a range of marks from 28 to 35 marks, with an average mark of 30.5 marks in total. Similarly, in the third criteria, “Experience of a professional nature in the field of education and involvement in the school”his marks varied from 10 to 16 marks and yielded an average of 12.25 marks in total, whereas, the successful appointee was awarded consistent marks by each member of the Interview Board in both criteria, with little variation.
The Court accepts that it is not unreasonable, where a candidate performs exceptionally well, as was submitted by the Respondent in this case, that the scores awarded by each of the interviewers in turn will reflect this.
The Complainant asserts that the successful candidate scored 54% more marks than him and proceeded to suggest that such a differential is not supported by the facts when account is taken of his superior qualifications, experience and his contributions to the school. When service is taken into consideration the overall marks show that the successful appointee scored 8.38% better then the Complainant. He received maximum scores for his greater length of service and his superior qualifications. The Court does not accept that a greater length of time in the school necessarily equates to superior experience, inHelga Nimz v Freie and Hansestadt Hamburg. [1991] ECR I-297,the ECJ held:
- “Normally service is regarded as synonymous with experience, which can be seen as an objective factor in determining suitability for promotion.” The ECJ stated the position thus:
- Although experience goes hand in hand with length of service, and experience enables the worker in principle to improve performance of the tasks allotted to him, the objectivity of such a criterion depends on all the circumstances in a particular case, and in particular on the relationship between the nature of the work performed and the experience gained from the performance of that work upon completion of a certain number of working hours. …
The Court is satisfied that the scores on the original marking sheets were accurately transferred to the revised marking sheets which were used to record the final scores.
The Court notes that while Mr. Mac Gleannain asked a question concerning Mr. Morarity’s professional development in the past three years, Sr. Rowan had asked him questions concerning other area of his past experience and he was afforded other opportunities to elaborate, including an opportunity to make a final statement. The Complainant did accept that an interviewer is allowed to put challenging questions at interview.
POLICY OF FAVOURING YOUNGER MEMBERS OF STAFF
The Complainant submitted that the Respondent has a policy of favouring younger people:
- The fact that there is a clear policy of favouring younger members of staff in the school.
- The possible grooming of younger candidates.
The Complainant submitted that the Respondent favours younger members of staff; this is evidenced by the fact that the Principal specifically singled out younger members of staff for praise at Staff Meetings and in School publicity features. He stated that the Respondent looked for details of “Date of Birth” in a memo sent to all staff and it was included as a question on Application Forms in 1996 and 2003. He also maintained that most school committees have a very high ratio of younger teachers, in particular he mentioned the School Development Planning Initiative Committee which he said held great importance in the school as many who served on it were subsequently promoted.
He maintained that an examination of successive promotional competitions since 1998 would show that younger members of staff were appointed.In support of his contention, the Complainant submitted that 30% of appointments since 1998 for promotions to Special Duties Teacher Posts were filled by members of staff aged 21 - 30 years, with the remainder being filled by those aged 31 – 40 years. He also submitted that 82% of Assistant Principal and Deputy Principal Posts since 2000 were filled by staff aged 31 – 40 years, with only 9% being in the 51 – 60 age bracket and only 9% in the 60 + age bracket.
He stated that the fact that one older candidate was successful in January 2001 is not sufficient to avoid an allegation of age discrimination. He citedGillen v Department of Healthand Children[2005] ELR 141:
“The presence of a single successful appointee who was in the same age group as the complainants does not disprove age discrimination, notwithstanding that the appointee is of exceptional ability compared to other successful appointees.”
Ms. Bolger disputed the statistical evidence advanced by the Complainant, stating that it is incomplete and misleading. She submitted that it must be borne in mind that any member of staff who is already in a higher post will not apply for a lower post, and certain members of staff did not apply for promotional posts. She submitted that in fact only one person aged 41 – 50 and one person aged 51 – 60 were unsuccessful for the promotions referred to in the Complainant’s statistical evidence. She pointed out that one person (aged 60+) was successful in 2000 in the promotional appointment to the post of Assistant Principal.
Mr. Moriarty claimed that the Respondent was involved in the possible grooming of younger candidates and held that the successful appointee had been given special treatment in her appointment as Special Education Coordinator and this role was favourably considered when she was appointed to the position as Assistant Principal in January 2004.
Ms. Bolger denied that the successful appointee had ever been appointed a Special Education Coordinator, this post is held by another (named) person. She stated that the successful appointee had responsibilities for special education co-ordination as part of her duties as a Special Duties Teacher.
Conclusion
From the evidence adduced the Court is not satisfied that the Complainant has discharged the burden of proving that the Respondent had a policy of favouring younger members of staff for promotions. The statistics do not show an imbalance according to age between those applicants who were successful and those who were unsuccessful in their application for promotional competitions and the statistics are not of sufficient significance to imply a discriminatory disposition on the part of the School.
The Court is of the view that to confine a question at interview to recent past could infer an inference of age discrimination however, the Court is satisfied that this is not in itself of “significant influence” to discharge the evidential burden which the Complainant bears.
Having considered the written and oral submissions and examined all the evidence submitted, the Court is not satisfied that there was any element of irregularity or unfairness in the selection process as it applied to the Complainant. Nor is there any discernible connection between the Complainant’s age and the decision of the Respondent not to select him for the disputed post. It is noted that contemporaneous notes of the interview were made and retained, the Court is satisfied that the markings were based on objective pre-determined criteria and members of the board were trained in the requirements of anti-discrimination law.
Based on these findings, the Court accepts that the Respondent had objective reasons, unconnected to the Complainant’s age, for its decision to appoint a younger person to the role of Assistant Principal in January 2004.
In these circumstances the Court must conclude that the Complainant has failed to establish facts from which discrimination could be inferred. Accordingly, his appeal cannot succeed.
Determination
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th November, 2007______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.