WALSH TOOLAN
AND
BOARD OF MANAGEMENT
COLÁISTE BRIDE SECONDARY SCHOOL
(REPRESENTED BY SIOBHAN PHELAN BL
INSTRUCTED BY ARTHUR O'HAGAN - SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Jane Walsh Toolan that she was (i) discriminated against by the Coláiste Bride Secondary School on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts when it failed to appoint her to the post of Programme Co-ordinator on four separate occasions between October, 2002 and February, 2005, (ii) harassed by Coláiste Bride Secondary School on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 14A of those Acts during the same period and (iii) victimised by the respondent within the meaning of section 74 of the Acts.
2. BACKGROUND
2.1 The complainant is a Post-Primary Teacher at Coláiste Bride Secondary School, Clondalkin, Dublin. She presented for interview for the post of Programme Co-ordinator on four separate occasions between October, 2002 and February, 2005 and was unsuccessful on each occasion. She asserts that she was the most suitable candidate on each occasion and that the respondent discriminated against on grounds of gender and/or family status at each competition. The complainant further contends that she was harassed and victimised by respondent during this period. The respondent rejects the complainant's assertions in their entirety and notwithstanding this, submits that the interviews in October, 2002 and June, 2003 are out of time as they were referred to the Equality Tribunal outside of the six month time limit prescribed at section 77(5) of the Acts and are not therefore properly before the Tribunal.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 10 February, 2005. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties and a Hearing of the complaint took place on 24 January, 2007. A number of points emerged at the Hearing which required further clarification and gave rise to correspondence between the parties and the Equality Officer. This process concluded in early July, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a Post- Primary School Teacher at Coláiste Bride Secondary School, Clondalkin. She presented for interview for the post of Programme Co-ordinator on four separate occasions between October, 2002 and February, 2005 and was unsuccessful on each occasion. She asserts that she was the most suitable candidate on each occasion and that the respondent discriminated against on grounds of gender and/or family status at each competition. The complainant states that the first of these interviews took place on 10 October, 2002. She contends that she was the most experienced candidate who presented for interview and was the only pregnant candidate. The post was awarded to Ms. K and the complainant was placed second on the Panel. The complainant contends that the then Principal of the school, Sr. M, told her that the successful candidate only had a "tiny edge" over her and the complainant states that she believes this tiny edge to be the fact that she was married and pregnant and Ms. K was neither. The complainant further states she was surprised that she was unsuccessful at interview and that she did not refer a complaint to the Equality Tribunal at the time because she was not aware of its existence. The complainant adds that she was nine months pregnant at the time of the second interview in June, 2003. She asserts that she was the most suitably qualified candidate for the post and that she was unsuccessful because of her pregnancy. She further contends that the respondent was of the view that the appointee should be the person who caused the least disruption to the school and she was about to commence maternity leave and would not be in a position to take up the post immediately. The complainant states that the letter issued to her by Sr. M informing her that she was unsuccessful contained the phrase "I wish you well with the big event ahead" and submits that this comment is prima facie discriminatory. She seeks to rely on the Decision of the Labour Court in Gleeson v The Rotunda and Mater Hospitals1 in support of this argument. The complainant states that she was surprised she was unsuccessful and felt her pregnancy was a factor but she did not refer a complaint to the Tribunal at the time because she was not aware she could do so.
3.2 The complainant states that she was applied for the post of Programme Co-ordinator for a third time in September, 2004 and attended for interview on 18 October, 2004. The complainant asserts that she was the most suitably qualified of the four candidates interviewed and that she was unsuccessful because of her family status and the fact that she was on maternity leave at the time - the successful candidate was not pregnant, was not on maternity leave and had no children at the time. She contends that Ms. K, who was now Principal, introduced her to the Interview Panel by announcing that it was her third time to attend at interview for the post. The complainant submits that this comment was clearly intended to reduce her chances of success and demonstrates the bias which Ms. K had towards her. She further contends that the breakdown of the marks at Interview under the category Relevant Experience and in particular the marks allocated to the sub-category of Co-ordination (4) should have been weighted higher as it is the central element of the post. She adds that whilst she received full marks in this area, the successful candidate, who had 6 weeks experience in co-ordination, was awarded 1 point. The complainant asserts that these marks are not pro-rata, that the marks allocated to this sub-category were kept deliberately low by the respondent to do her down and seeks to rely of the Decision of the Equality Tribunal in Lynskey v Coolmine Community School2 in this regard. She further asserts that the marking scheme lacked transparency and relies on the Tribunal's Decision in Glennon v St. Clare's Comprehensive School3in this regard. Finally, the complainant contends that the respondent (through Ms. K) sought clarification from the Joint Management Body - Association of Management of Catholic Secondary Schools (JMB) in advance of the selection process, that should the complainant succeed at interview, would a second interview be required to select her successor when she departed on maternity leave. The complainant submits this action clearly demonstrates that her pregnancy and maternity leave were issues before applications were submitted or any Interview Panel assembled.
3.3 The complainant states that she appealed the outcome of the October, 2004 interview to the Arbitration Process in accordance with the Department of Education and Science Circular PPT 17/02. She adds that the Arbitrator upheld her appeal and ordered the post re-advertised and a new competition held. The complainant re-applied for the new competition and presented for interview on 7 February, 2005. She was again unsuccessful and the candidate who had been placed first following the October, 2004 selection process was successful again. The complainant contends that she was the best qualified and most suitable candidate for the post and the respondent treated her less favourably because of her gender and family status as she had only recently returned from maternity leave and she had children - the successful candidate had no children at the time. The complainant contends that the marking system used in the previous competition, which she takes issue with, was used again and repeats her arguments in this regard. She adds that the successful candidate obtained an unfair advantage by virtue of her appointment to the post of Head of Home Economics in March, 2002 - experience which was taken into account by the Interview Panel and she seeks to rely on the Decision in Maher v BOM Coláiste Chiaráin4 on this issue. The complainant further contends that (i) the composition of the Interview Panel was not in accordance with Department of Education and Science Circular's PPT 17/02 and PPT 29/02, (ii) the appointment of the successful candidate was not ratified by the Board of Management as required, (iii) she was not asked the full list of questions prepared by the Interview Panel and (iv) there are insufficient notes available from the interview to support the respondent's assertion that Ms. N was the better candidate at interview. She submits that these breaches of procedure and shortcomings support her contention that she was subjected to discriminatory treatment in the course of the selection process.
3.4 The complainant alleges that she was harassed on grounds of gender on a number of occasions between April, 2003 and February, 2005. She states that the first such alleged incident occurred in April, 2003 when the complainant was eight months pregnant and was attending a staff meeting following her return to work from a routine hospital visit connected with her pregnancy. The complainant states that Ms. K, who was a teacher at that time, insisted that she "get off my seat" as "she was sitting there first" and when the complainant explained she was pregnant Ms. K told her to "get up, get up". The complainant states that she found this behaviour to be offensive, humiliating and intimidating, particularly as she was pregnant. The complainant states that the second occasion occurred in September/October, 2003 when she was on maternity leave. She alleges that Ms. K, who had recently been appointed Principal, rang her at home on several occasions in respect of school related matters. The third alleged incident occurred in February, 2004 when Ms. K told her "she was better off keeping her mouth shut" when the complainant expressed an opinion on how a temporary post within the school was being filled.
3.5 The complainant asserts that she was victimised by Ms. K on a number of occasions. She contends that the first of these took place on the day she returned to work after maternity leave in January, 2005. She states that she met with Ms. K the Friday before she was due to return to work and confirmed to her that she would be back the following Tuesday. The complainant states that she reported for duty that day and spoke with colleagues, including the Vice-Principal, in the staff room before going to class. She adds that in the course of the morning there was an announcement from Ms. K over the school intercom stating "If Ms. Walsh is in the building could she come to my office". The complainant states that the Principal subsequently told her that this was a new procedure - the complainant adds that Ms. K had failed to inform her of this new procedure the previous week when she was speaking with her and argues that it constitutes penalisation of her. The complainant states staff who are "post-holders" within the school receive a reduction in the number of class contact hours they are required to deliver. She adds that this also applied to staff who are Programme Co-ordinators. She adds that toward the end of the school term in 2005 Ms. K presented her with a time-table of 22 teaching hours per week, an increase of approximately 4 hours over her previous hours. The complainant states that she queried this matter with the Principal and it was subsequently reduced to 19 hours per week. She asserts that this constitutes further victimisation of her contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's allegations in their entirety and submits that the selection process operated by it has at all times been a fair and unbiased process established to choose the most suitable candidate. Notwithstanding this argument it submits that (i) the interviews in October, 2002 and June, 2003 are out of time (in terms of section 77 of the Acts) because they occurred more than six months from date of the referral of the complaint to the Tribunal and (ii) that the complainant is estopped from pursuing her complaint because the matters raised by her were previously argued before an Independent Arbitrator who has ruled on same.
4.2 The respondent states that the interviews in 2002 and 2003 were governed by Department of Education and Science Circular (DES) PPT 17/02 and that these guidelines were applied in both instances. It adds that Sr. M, who was Principal at the time of the first interview in October, 2002, has no recollection of making the comment attributed to her by the complainant but accepts that she may have done so. The respondent contends that even if this was the case it had no bearing on the outcome of the process as there was no doubt or dispute amongst the Interview Panel members that the most suitable candidate was selected. The respondent accepts that the complainant was visibly pregnant at the time of the June, 2003 interviews but rejects the assertion that this was a factor which influenced the outcome of the selection process. It states that this was a separate independent process and the Panel was again in agreement as to whom the most suitable candidate was following the Interview. The respondent accepts that Sr. M wrote the comment "I wish you well with the big event ahead" when informing the complainant she was unsuccessful but states that this was merely Sr. M's attempt to convey her own personal good wishes to a member of staff whom she had a good working relationship with in respect of the birth of her child. Notwithstanding the foregoing, the respondent submits the interviews in 2002 and 2003 are out of time in that they are stand alone procedures and the complainant did not refer either of them to the Equality Tribunal alleging less favourable treatment within the six month time frame prescribed at section 77 of the Acts. It further submits that the complainant's unawareness of her right to refer a complaint to the Tribunal at either of those times is no defence to her failure to refer a compliant on either/both occasions.
4.3 The respondent states that the October, 2004 selection process was again governed by DES Circular PPT17/02. It adds that the three person Interview Panel comprised the Principal (Ms. K), a nominee of the Board of Management and an independent Chairperson, in accordance with the Circular. The marking system applied was also in accordance with the Circular and Joint Management Body - Association of Management of Catholic Secondary Schools Guidelines to same. The subdivision of the marks under the category "Capacity to undertake the role as illustrated by previous relevant experience" was agreed by the Panel in advance of the interviews commencing and was in accordance with the Circular's Guidelines. The respondent states that Panel also agreed the list of questions to be asked of the candidates and which member of the Panel would ask which questions. Each member of the Panel marked candidates separately and an agreed mark was reached collectively in the course of the discussions which followed the interview. The respondent (Ms. K) denies that she made the comment at the start of the interview attributed to her by the complainant. It adds that this was the first time she had been involved in interviews in her capacity as Principal and she was careful to observe the proper procedure. It accepts that Ms. K contacted the JMB in advance of the interviews seeking its advice as to what should happen if the complainant was successful at interview and she was unable to take up the post because of her maternity leave but states that she did so because staff were speculating in that regard. The respondent (Ms. K) rejects the complainant's assertion that her actions were somehow geared towards discriminating against her and re-iterates that the Interview Panel had operated a fair and transparent process which complied with procedure.
4.4 The respondent states that following the Arbitrator's decision on foot of the complainant's appeal of the October, 2004 selection process it was required to hold a new set of interviews. These interviews took place in February, 2005 and the complainant and one other candidate presented for interview. The respondent adds that the selection process was again governed by DES Circular PTT 17/02. The Interview Panel comprised the Principal (Ms. K), an independent Chairperson and nominee of the Board, in accordance with the Circular. The respondent states that the same marking system as used in the October, 2004 interviews was applied - which it submits is consistent with the Circular and JMB Guidelines - because that system had not been impugned by the Arbitrator. It adds that the Panel met in advance and agreed the marking system, questions and approach. Each member of the Panel marked candidates separately and an agreed mark was reached collectively in the course of the discussions which followed the interview. The respondent states that the successful candidate (who had also been the successful candidate on the previous occasion) showed greater focus on the needs of the post and was considered the most suitable candidate following interview.
4.5 The respondent rejects the assertion that it harassed the complainant contrary to the Acts. It states that at the time of the first alleged incident (April, 2003) Ms. K had prepared documentation on Transition Year students for a presentation to a Staff Meeting. It states that Ms. K had arrived at the room early and as she had to leave her seat for a few moments she placed the documentation on the seat. When she returned the complainant was sitting in the seat and Ms. K asked her to vacate it as she needed to refer to the documentation during the course of the meeting. It submits that it was perfectly clear the seat was occupied and that Ms. K merely reasserted her right to sit in the place. It denies that the behaviour was offensive, humiliating or intimidating on the gender ground and submits that it could not be construed as harassment under the Acts. The respondent accepts that it contacted the complainant during her absence on maternity leave during September/October, 2003 but adds that she had indicated prior to her departure that she would be available should the need arise. Ms. K was Principal at that time and was not completely au fait with the complainant's area of work and needed to consult with her. It adds that the complainant never voiced her displeasure to Ms. K about the contact at that time so she (Ms. K) did not view her behaviour as an imposition on the complainant. The respondent states that in February, 2004 the complainant made an issue about how a temporary post was being filled by the Principal tossing a coin between two equally qualified and suitable teachers. The respondent adds that the teachers in question did not raise any objection to the process and the matter did not involve the complainant. The respondent accepts that Ms. K was curt with the complainant when she continued to remonstrate with her (Ms. K) but rejects the proposition that the comments could be regarded as construed as offensive, humiliating or intimidating on grounds of gender, rather they were made as a means of bringing a situation to a close - a situation in which the complainant appeared to be "meddling".
4.6 The respondent rejects the complainant's assertion that she was victimised contrary to the Acts. It states that it was the practice in the school at the time (January, 2005) that staff returning to work after a period of absence to call to the Principal's Office to register the fact of their return. The complainant did not do so and the Principal was approached by an Examiner from the Department of Education and Science who wished to meet with the complainant and the Principal used the intercom to establish if the complainant was in the building. The respondent adds that the intercom is frequently used for similar purposes and denies the contention that her behaviour amounts to victimisation of the complainant. The respondent states that the long established arrangements in the school was that Programme Co-ordinators who are not post holders (receiving remuneration for the duties) were given reduced class contact hours in lieu of payment. It adds that the complainant had been appointed to a permanent (remunerated) post of responsibility to perform the co-ordination duties she had previously carried out on a voluntary basis and was therefore not entitled to reduced class contact hours. The respondent submits therefore that in seeking to allocate 22 hours of weekly class contact time the complainant was being treated in exactly the same way as other member of its teaching staff. It adds that only Year Heads teach as few as 18 hours a week and the complainant was not a Year Head. The respondent states that following discussion between the complainant and Ms. K a compromise was reached where she was allocated 19 hours class contact time and had an additional duty assigned - an outcome which the respondent believed was agreeable to the complainant.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not (i) certain aspects of Ms. Walsh-Toolan's complaint are referred within the time limits prescribed at section 77 of the Employment Equality Acts, 1998 - 2004 and are therefore within my jurisdiction to investigate, (ii) the respondent discriminated against the complainant on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 8 of those Acts when failed to appoint her to the post of Programme Co-ordinator between October, 2002 and February, 2005, (iii) the complainant was harassed by the respondent on grounds of gender and family status, in terms of section 6 of the Employment Equality Acts, 1998 -2007 and contrary to section 14A of those Acts during the same period and (iv) the respondent victimised her within the meaning of section 74 of the Acts. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing.
5.2 The complainant asserts that the respondent discriminated against her on grounds of gender and marital status when it failed to appoint her to the post of Programme Co-ordinator on four separate occasions: October, 2002; June, 2003; October, 2004 and February, 2005. The respondent notes that the complainant referred her complaint to this Tribunal on 10 February, 2005 and submits therefore that the interviews in 2002 and 2003, which were stand alone competitions, are outside of the time limits prescribed at section 77(5) of the Employment Equality Acts, 1998-2004 and the Tribunal has no jurisdiction to include those competitions as part of its investigation. The complainant stated at the Hearing that she formed the opinion that her pregnancy was a factor in her non-selection after the interview in June, 2003. She added that she was not aware of the existence of the Tribunal at that time. I have examined the circumstances surrounding the two competitions in question and noted the evidence at the Hearing from Sr. M (who was Principal at the time) and Mr. O (who was the independent Chairperson of both Panels) - both of whom I found to be forthright and credible witnesses. I am satisfied that the selection processes were conducted in accordance with the relevant Departmental Circular and were stand alone competitions. It was open to the complainant to refer a complaint to this Office at any time but she failed to do so. Her lack of knowledge as to the extent of her statutory rights is this regard cannot be considered sufficient to extend her present claim of discrimination so as to bring those competitions within the ambit of my investigation, particularly when such an argument is highly unlikely to have succeeded in satisfying the test of "exceptional circumstances preventing referral of a complaint" which existed at that time in respect of extending the time limits under the Acts. Section 77(5) of the Acts requires a complainant to refer a complaint to this Tribunal within six months of the most recent occurrence of the alleged discriminatory treatment. In light of the foregoing I find that the competitions in October, 2002 and June, 2003 were not referred within the prescribed statutory time limit and they will not form part of my investigation. I note the respondent further submits that the complainant is estopped from pursuing her complaint to this Tribunal because she had ventilated these issues before an Independent Arbitrator. I do not accept the respondent's arguments on this point. The relevant Departmental Circular (DES PPT 17/02) governing the selection processes provides that a candidate may refer a complaint to an Independent Arbitrator if s/he considers the process to have been conducted in an unfair manner. This Appeal Scheme is one which is agreed between the relevant Trade Union and School Management Authorities and forms part of the sector's industrial relations mechanism. It cannot prevent a person from exercising his/her statutory rights under the Employment Equality legislation. It follows therefore that the complainant is entitled to pursue her complaint to this Tribunal.
5.3 I shall now examine the selections processes held in October, 2004 and February, 2005 which are referred within time. Section 85A of the Employment Equality Acts 1998 and 2007 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In Davis v Dublin Institute of Technology5 Quirke J concluded that "a significant difference between the qualifications of the candidates together with a gender difference" may give rise to a prima facie case of discrimination. I note from the CV's of the complainant and the successful candidate that at the time of the interviews in October, 2004 the complainant had 12 years' experience as a teacher whereas the successful candidates 10 years' such experience. I further note that the complainant performed co-ordination duties on Senior Cycle School Programmes from 1995 whereas the successful candidate only had a few months such experience -although she had acted as Head of Home Economics in the school from April-June, 2004. It is a fact that the complainant was on maternity leave in October, 2004 and had other children at that time and that the successful candidate did not have children. It is well established jurisprudence of the European Court of Justice6 that less favourable treatment on grounds of pregnancy is prima facie direct discrimination on grounds of gender. I find therefore that the complainant has established a prima facie case of discrimination and the burden shifts to the respondent to rebut the inference raised.
5.4 Having examined the evidence submitted by the parties in respect of the October, 2004 interviews I am satisfied that the composition of the Selection Panel complies with Circular DES PPT 17/02. I am further satisfied that the General Marking Scheme operated by the Panel was in accordance with the Circular. The complainant takes issue with the breakdown by the Panel of the 20 marks under the category "Capacity to undertake the Role as illustrated by previous relevant experience" - in that it broke it into five sub-categories each allocated 4 marks and argues that the marks allocated to the sub-category of Co-ordination should have been weighted higher as it is the central element of the post. The complainant also argues that whilst she received full marks in this area, the successful candidate, who had 6 weeks experience in co-ordination, was awarded 1 point and asserts that these marks are not pro-rata, that the marks allocated in the sub-category were kept deliberately low by the respondent to do her down and seeks to rely of the Decision of the Equality Tribunal in Lynskey v Coolmine Community School7 in this regard. I note that the Joint Management Body - Association of Management of Catholic Secondary Schools Guidelines (which are endorsed by the ASTI) to the interview process for posts of Programme Co-ordinator (DES Circular PPT 17/02), suggests a number of sub-categories across with the 20 marks for the Relevant Experience can be split. I am satisfied that the breakdown adopted by the Panel is consistent with those Guidelines. I note the evidence at the Hearing of Ms. X -who was the independent Chairperson of the Panel - that the sub-categories and marks allocated to each were decided by the Panel in advance of the interviews and that no coercion was brought to bear on her or the other Panel Member as regards how the sub-categories were weighted relative to each other and I found her evidence to be credible and consistent on this matter. I am satisfied that the Panel was entitled to adopt the approach it did and that its actions cannot be regarded as discriminatory as the same marking system was applied to all candidates. The complainant asserts that the marks awarded to her and the successful candidate under the sub-category entitled Co-ordination were not pro-rata given the difference in duration of their respective co-ordination experience and that the marks in this sub-category were kept deliberately low to do her down. I note that the complainant received full marks under this sub-category and the successful candidate 1 mark. It appears the complainant is suggesting that the successful candidate should have received no mark or a fraction of a mark for her co-ordination experience and I do not accept that proposition as a practical one. I am satisfied that the division of the 20 marks across the five sub-categories was done in a fair manner and cannot accept the complainant's assertion that the Panel operated a system that was motivated by a desire to do her down because or her pregnancy or family. I cannot see the relevance of the Lynskey case on this point. In that case the Equality Officer found that the Selection Panel "approached the interviews without ...... any objective criteria against which to measure candidates for the post" which did not arise in the instant case.
5.5 The complainant further asserts that the marking scheme lacked transparency and relies on the Tribunal's Decision in Glennon v St. Clare's Comprehensive School8 in this regard. Having evaluated the evidence on this matter I am satisfied that the marking system in the instant case was clear and transparent. The complainant contends that Ms. K introduced her to the Interview Panel by announcing that it was her third time to attend at interview for the post and that that this comment was clearly intended to reduce her chances of success and demonstrates the bias which Mr. K had towards her. I note the Arbitrator found that Ms. K made this comment and on balance, I would concur with his finding in this regard. However, I cannot see how the comment could be considered as discriminatory on grounds of gender or family status and concur with the opinion of the Arbitrator that the comment was at best unfortunate, inappropriate or ill-advised. The final issue raised by the respondent concerns Ms. K's approach to the JMB to ascertain what the procedure would be should the complainant be successful at interview and not be able to take up the position immediately due to her absence on maternity leave. I note Ms. K's evidence that this was the first time she had been involved in interviews in her capacity as Principal and she was therefore careful to observe the proper procedure. I further note that staff were speculating about what might happen in the event the complainant was successful. It is clear to me that the complainant had a high expectation she would be successful on this occasion and I am satisfied, on balance, that this expectation was shared by her colleagues. In those circumstances I am satisfied that it was appropriate for Ms. K to check the procedure with the JMB, although it may have been more prudent to await the outcome of the interviews before doing so. However, I cannot accept that her behaviour constitutes less favourable treatment of the complainant. Before leaving this matter I feel it necessary to comment on the lack of notes taken at interview by the Panel - only sparse notes made by Ms. K were furnished to the Tribunal - and Ms. X stated she made no notes because the table between the Panel and the candidates was narrow. Both this Tribunal and the Labour Court has commented previously on the fatal impact such a failure can have on a respondent's ability to demonstrate that the decision of the Panel was an objective one. However, as stated I am satisfied that the selection process was conducted in accordance with the relevant DES Circular and that the marking scheme, questions and the approach by individual members of the Panel were agreed in advance of the interviews. In addition, I found the evidence of Ms. X - the independent Chairperson to be forthright and credible. Consequently, I do not find that the scarcity of interviews is fatal to the respondent on this occasion.
5.6 I shall now examine the selection process in February, 2005. The respondent again takes issue with the composition of the Interview Panel and the marking system adopted by it - the same system as adopted in the October, 2004 process. My comments in the preceding paragraph about both these issues in respect of that selection process apply for the February interviews also. It is noteworthy that the Arbitrator did not impugn the marking system in the course of that appeal process and I am of the view that the respondent was perfectly entitled to operate the system again. The complainant argues that a number of other alleged breaches of procedure support her assertion that she suffered discriminatory treatment. The first of these assertions is that the successful candidate obtained an unfair advantage by virtue of her appointment to the post of Head of Home Economics in March, 2002 - experience which was taken into account by the Interview Panel - and she seeks to rely on the Decision in Maher v BOM Coláiste Chiaráin9 on this issue. The Equality Officer clearly found that the Arbitrator's finding in that instance - which dealt with a candidate receiving benefit from an unfair selection process - had no relevance to the Equality Officer's decision and therefore that decision has no relevance to the instant case. The Arbitrator in the instant case ordered the interviews to be re-held primarily because of Ms. K's comment to the Interview Panel. In addition, I note that there was no objection from staff when Ms. N was appointed to the post of Head of Home Economics on a temporary basis and the appointment was made with full staff agreement. The complainant asserts that the appointment of the successful candidate was not ratified by the Board of Management as required. The Articles of Management for Catholic Secondary Schools as agreed between the ASTI and JMB state at Article 9 that "at least four members shall form a quorum" for a Board of Management meeting. The successful candidates' appointment was ratified at the Board Meeting of 10 February, 2005. The respondent furnished minutes of this meeting and I note that (i) the meeting was attended by six members of the Board of Management and (ii) the appointment of Ms. N was approved at Item 6 of the meeting. I am therefore satisfied that the appointment was in order. The third assertion made by the complainant was that she was not asked the full list of questions prepared by the Interview Panel. The respondent furnished the Tribunal with a copy of the Questions it prepared for the February, 2005 interviews. There were thirteen questions submitted, including the now standard closing question "anything you wish to add?". I note the complainant stated in evidence that her interview lasted between 30-40 minutes. I cannot see how, in an interview of that duration, it would be possible for the Interview Panel to ask a candidate all the questions and still give that candidate adequate time to develop his/her answers so as to demonstrate his/her suitability for the post. Finally, the complainant asserts that there are insufficient notes available from the interview to support the respondent's assertion that Ms. N was the better candidate at interview. Unlike the previous interview the respondent furnished the contemporaneous notes of all three members of the February, 2005 Panel. In addition all three members attended the Hearing and gave evidence that they found Ms. N to have a greater focus on the needs of the post. Consequently, I cannot accept the complainant's assertion on this issue.
5.7 In Dublin Institute of Technology v A Worker10the Labour Court held "It is not the responsibility of the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board.". On the evidence presented I am satisfied that the Interview Panels in October, 2004 and February, 2005 were properly constituted in accordance with DES Circular PPT 17/02 and that selection processes were conducted in a fair, open and transparent manner. I am further satisfied that the failure to appoint the complainant to the post of Programme Co-ordinator on both occasions was not tainted in any way by the complainant's pregnancy, maternity leave or the fact that she had children. In light of this and my comments in the preceding three paragraphs, I find that the respondent has discharged the burden of proof required of it and rebutted the inference of discrimination raised by the complainant. It follows that the respondent did not discriminate against her on the grounds cited.
5.8 Section 14A of the Employment Equality Acts, 1998 and 2007 defines harassment as "any form of unwanted conduct related to any of the discriminatory grounds..... being conduct which ...has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". The initial burden of proof rests with the complainant to establish facts from which it could be inferred that the alleged behaviour of Ms. K constitutes harassment on the gender ground contrary to the Acts. On the basis of the evidence submitted I am not satisfied, on balance, that the complainant has discharged this burden of proof in respect of the three alleged incidents of harassment and her claim in this regard must therefore fail. Whilst the first alleged incident might be viewed as inconsiderate, I cannot accept that it constitutes harassment. I note that the complainant accepted in the course of her evidence that she did not "voice her concerns" to Management about the "constant contacts" Ms. K initiated during the complainant's maternity leave. I would have thought that had the complainant viewed them as "unacceptable" she would have made the Principal aware of same. I am satisfied that the complainant was indeed involving herself with matters which were of no personal concern to her in respect of the third alleged incident of harassment. I consider it perfectly reasonable for Ms. K to have reacted the way she did in circumstances where a member of staff was effectively interfering with a matter that was of no consequence to her. In those circumstances it is understandable that Ms. K was brusque/curt with her but I cannot accept that it constitutes harassment of the complainant on either of the discriminatory grounds cited.
5.9 The complainant submits that the alleged treatment of her by Ms. K following her (the complainant's) return from maternity leave in January, 2005 constitute victimisation of her contrary to the Acts. Section 74(2) of the Employment Equality Acts, 1998-2007 define victimisation as "the dismissal or other adverse treatment of an employee by his or her employer as a reaction to a complaint of discrimination made by the employee to the employer ....... or having given notice of an intention to do so". It is accepted that the respondent was aware of the complainant's intention to pursue a complaint to this Tribunal prior to her return to work in late January, 2005. It is for the complainant to establish, in the first instance, that the alleged behaviour of Ms. K on the complainant's return to work from maternity leave in late January, 2005 and/or her treatment in May, 2005 when timetables were being set, constitute adverse treatment of the complainant because she had referred her complaint to this Tribunal. I note that the complainant spoke with Ms. K shortly before her return to work from maternity leave and I satisfied that it was open to her (Ms. K) to indicate to her that she should report to her Office before attending class on her return. It appears to me that the relationship between the complainant and Ms. K by that time was strained - they had been friends for a number of years and had been on holidays together - and both found it difficult to communicate with each other on a personal level. On balance, I accept the explanation of Ms. K that she used the intercom system to request the complainant's attendance at her Office and that this was a method used on a regular basis. I therefore find that the treatment does not constitute victimisation of her contrary to the Acts. The second alleged incident of victimisation concerns the assignment of 22 teaching contact hours to the complainant towards the end of the school year 2005, where she previously has been assigned 18 such hours. The respondent accepts that this increase took place but states that it arose from the fact that the complainant was at that time, receiving payment for the work that she previously performed on a voluntary basis. I further note that when the complainant raised the matter with Ms. K the reduced hours were restored to her, notwithstanding that the complainant took on an extra duty. I am satisfied, on balance, that this treatment of the complainant does not constitute victimisation of her contrary to the Acts.
6. DECISION OF THE EQUALITY OFFICER.
I find that -
(i) the interviews for the post of Co-ordinator at Coláiste Bride
Secondary School held in October, 2002 and June, 2003 were not
referred within the prescribed statutory time limit and are not
therefore properly before the Tribunal for investigation;
(ii) the fact that the complainant exercised her right to dispute the
outcome of the October, 2004 selection process for the post of Co-
ordinator at Coláiste Bride Secondary School under an agreed
industrial relations Arbitration mechanism does not prevent her
from exercising her statutory rights under the Employment Equality
Acts;
(iii) the respondent did not discriminate against the complainant on
grounds of gender and family status, in terms of section 6 of the
Employment Equality Acts, 1998 -2007 and contrary to section 8 of
those Acts, when failed to appoint her to the post of Programme
Co-ordinator in respect of the selection processes in October, 2004
and February, 2005;
(iv) the complainant has failed to establish a prima facie case of harassment contrary to Section 14A of the Acts and her complaint is this regards must fail;
(v) the complainant has failed to establish a prima facie case of victimisation within the meaning of section 74 of the Acts and her complaint is this regards must fail.
____________________________
Vivian Jackson
Equality Officer
8 October, 2007
1 AEE/99/9
2DEC-E2002/035
3DEC-E2003/030
4DEC-E2006/19
5 High Court, 2000 - Unreported
6 Dekker Case C-177/88
7 DEC-E2002/035
8 DEC-E2003/030
9 DEC-E2006/19
10 DEE94