SKELLY
AND
DEPARTMENT OF EDUCATION AND SCIENCE
(REPRESENTED BY CATHY MAGUIRE BL
INSTRUCTED BY CHIEF STATE SOLICITOR)
1. DISPUTE
This dispute involves a claim by Ms. Deborah Skelly that she was discriminated against by the Department of Education and Science on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998 -2004 and contrary to section 8 of those Acts when it refused her application for paid study leave from her post as a Post-Primary Teacher in August, 2004.
2. BACKGROUND
2.1 The complainant is a Post-Primary Teacher at St Paul's Secondary School, Greenhills Dublin. In February, 2004 she applied to the respondent, via the Board of Management at the aforementioned school, for a period of paid study leave from November, 2004 to June, 2005 to pursue a Bachelor-at-Law Degree at the Kings Inns. The respondent rejected her application for paid study leave but following an appeal by the complainant of this decision it granted her unpaid leave study leave to pursue her course of study. The complainant asserts that this treatment constitutes discrimination of her on grounds of gender contrary to the provisions of the Employment Equality Acts, 1998-2004. The respondent rejects the complainant's assertion that it treated her less favourably on grounds of gender and notwithstanding this contention it submits that it is not an appropriate respondent in the complaint as Ms. Skelly is employed by the Board of Management of St. Paul's Secondary School.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on18 January, 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 20 December, 2006. 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 late May, 2007.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is a Post- Primary School Teacher at St Paul's Secondary School, Greenhills, Dublin. The complainant states that on 27 February, 2004 she submitted a written application to the Board of Management of that school ("BOM") for paid study leave from her teaching post from 4 November, 2004 until 3 June, 2005 - during which time she would retain her post of responsibility in the school - in order to pursue a Bachelor-at-Law Degree course at the Kings Inns. Her application was conditional on her achieving the requisite standard in the Bar Entrance Exams, the results of which were not available until September, 2004. She adds that the BOM supported her application and passed it on to the respondent for consideration on 31 March, 2004. The complainant states the respondent informed the BOM by letter dated 2 August, 2004 that her application was rejected and suggested that she might wish to apply for a career break under its Circular 22/99, which permitted absence from duty for educational purposes. The complainant states that she appealed this decision and was subsequently offered unpaid study leave from 1 September, 2004 until 31 August, 2005. The complainant states that she had no option but to agree to these terms, despite the fact that she remained in her post until 11 October, 2004. She contends that she has been treated less favourably than other teachers who were granted paid study leave during the school year 2004/2005 to pursue their chosen course of study, adding that the respondent's decision was based on minimal knowledge of the content and relevance of her course to her school and could not be considered other than ad-hoc - particularly when another section in the respondent Department considered it suitable/relevant for the purposes of a Refund of Fees Scheme operated by it. The complainant further contends that she was treated less favourably than a male teacher in another school who was granted unpaid study leave to pursue the same course the following school year (2005/2006), without the conditions imposed on her by the respondent. Finally, the complainant states that she was treated less favourably than other teachers who had applied to the respondent for other types of leave of absence in 2004 e.g. career breaks and maternity leave in that all those applications were dealt with before the end of the school year (May, 2004) and her application was not deemed a priority.
3.2 The complainant submits that the Department of Education and Science is the correct respondent in respect of this complaint. She acknowledges that section 24 of the Education Act, 1998 provides for the BOM to appoint teachers to the school but adds that it can only do so with the approval of the Minister for Education and on terms and conditions determined by that Minister, with the approval of the Minister for Finance. The complainant further submits that the BOM fully supported her application for paid study leave and the decision not to grant that leave was taken by an official of the Department. She argues this action clearly demonstrates that the respondent was exercising its authority under section 24(5) and (6) of the Education Act, 1998. She concludes by submitting that the caselaw cited by the respondent in support of its arguments on this issue covers matters of appointment, dismissal and disciplinary actions against teachers - actions which clearly lie within the remit of the BOM in the context of its role as decision maker on those issues. Finally, the complainant accepts that she was unable, at the time of referral, to specify a male Post-Primary Teacher against whom she intended to compare herself for the purposes of her complaint. She adds that she sought this information by way of the Equality Tribunal's EE.2 Form (Questionnaire of the Complainant under section 76 of the Acts) which was sent to the respondent on 13 August, 2006. She states that the respondent never replied to this request and contends that it made a conscious decision not to do so - in this regard she seeks to rely on the respondent's statement in its submission that it was unaware that it should respond to same and overlooked replying to the complainant. She submits therefore that it was entirely appropriate for her to identify the male comparator at the Hearing.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent submits in the first instance that the Department of Education and Science is not the correct respondent for the purposes of the complaint. It argues that under section 24 of the Education Act, 1988 the complainant is employed by the Board of Management of St. Paul's Secondary School, Greenhills, Dublin. It cites the decisions of the Equality Tribunal in McGinn v BOM St. Anthony's NS and the Department of Education and Science1 , Delaney v Drunshanbo NS and the Department of Education and Science2 and Bleach v Our Lady Immaculate Senior School and the Department of Education and Science3 as authority the Tribunal has held that teachers are employed by the relevant Boards of Management and not the Department. It also cites the judgement of Kearns J in Tobin v Cashell & Others4 in support of that argument. The respondent also submits that the complainant did not identify an actual comparator on her original complaint form which she referred to the Equality Tribunal on 18 January, 2005. It adds that she inserted the following on the portion of the form requiring the name of the comparator "Another Post-Primary Teacher employed by the DES pursuing their chosen course of professional development where they have been granted paid study leave ......". The respondent submits that this equates to nothing more than a hypothetical comparator and does not comply with the requirement of the Acts. It further submits that this deficiency is not cured by the fact the complainant named this comparator in the course of the Hearing and asserts that her evidence in this regard must be regarded as hearsay as the comparator did not attend to give evidence on his arrangements with the respondent as regards leave.
4.2 The respondent rejects the assertion that it discriminated against the complainant on grounds of gender in relation to her application for paid study leave. It accepts the accuracy as regards dates and contents of correspondence between the parties as set out by the complainant above. It states that the complainant's application was assessed by Ms. H, an official in the Department's Post-Primary Teacher's Allocation Section. It accepts that there is no official Departmental Circular on Study Leave but states that it applies Guidelines which have operated for many years and these Guidelines are consistent with the ASTI Information Leaflet for Second Level School Teachers, which has existed since around 1998. The respondent adds that Ms. H applied these Guidelines to the complainant's application and recommended rejection of same because she was of the view that course of study which the complainant intended to pursue covered a professional qualification which was not relevant to post-primary teaching. The respondent rejects the assertion that it did not deal with the complainant's application in a prompt fashion. It states that the Post-Primary Teacher's Allocation Section deals with a wide range of issues and applications for study leave were not considered a priority relative to other work within the section and the general management of same. It adds that applications for career breaks are handled at school level and matters concerning maternity leave are dealt with by another section within the Department, adding that applications in the latter are in any event pursuant to a statute.
4.3 The respondent states that the complainant's letter of appeal was considered by Mr. F, another official in its Post-Primary Teacher's Allocation Section, who was senior in rank to Ms. H. It adds that having reassessed the application, Mr. F supported the original decision not to grant paid study leave but approved the offer of unpaid study leave for the complainant from 11 October, 2004 - the date on which the complainant's course commenced - until the start of the following school year - 31 August, 2005 - on condition that it represented a years' study leave in respect of the complainant. It adds that it was normal to approve periods of paid and unpaid study leave for a full school year and for applicants to avail of the leave on that basis and states that the complainant's case was different in that regard as a special situation existed and Mr. F exercised some discretion in the matter. It submits that rather than being treated less favourably the complainant was given more favourable treatment that others who were grated periods of study leave that year. The respondent further accepts that the comparator cited by the complainant (Mr. A) pursued a Barrister-at Law Degree in the Kings Inns during the school year 2005/06 and adds that he was granted a period of unpaid study leave to complete this qualification. It submits therefore that the complainant was treated in exactly the same manner as Mr. A and no less favourable treatment of her exists. Finally, the respondent states that it granted a refund of fees for both Years 1 and 2 of the complainant's part-time diploma in Legal Studies (which was a precursor to the Bachelor-at-Law Degree) because it viewed that course as relevant to her position as a Post-Primary Teacher. It accepts that there was some confusion concerning the manner in which the fees were refunded in respect of the second year but denies that this constitutes discrimination of her contrary to the Acts. It adds that it did not refund the complainant's fees for her Bachelor-at-Law Degree because the Committee established to oversee the Refund of Fees Scheme decided the course did not qualify because it equipped the complainant to practice in another profession outside of teaching. The respondent submits therefore that there is no inconsistency between the policy on refund of fees and applications for paid/unpaid study leave.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the Department of Education and Science is the correct respondent in this complaint, (ii) whether or not the complainant is entitled to pursue her complaint of discrimination citing Mr. A as the person with whom she asserts she was less favourably treated and (iii) did the respondent discriminate against the complainant on grounds of gender, in terms of section 6 of the Employment Equality Acts, 1998- 2004 and contrary to section 8 of those Acts when it refused her application for paid study leave in August, 2004. 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 first issue which I must consider is whether or not the Department of Education and Science is the correct respondent in this complaint. The respondent points to section 24 of the Education Act, 1998 and has cited a number of decisions of this Tribunal and the judgement of the High Court Tobin v Cashell & Others5 in support of the argument that the Department of Education and Science is not the correct respondent in this complaint. Section 24(1) of the Education Act, 1998 empowers a school's Board of Management to appoint teachers and other staff to the school. However, this is not an absolute power and section 24(2) of that Act provides that the numbers and qualifications of teachers are subject to the approval of the Minister for Education and Science. Sections 24(5) and 24(6)of the Act provide that the terms and conditions of employment in respect of teachers, including remuneration, is determined by the Minister for Education and Science, with the concurrence of the Minister for Finance - a point which is accepted by the respondent in its submissions to this Tribunal. It is clear therefore, that Boards of Management do not operate in isolation and that the Department of Education and Science has a significant role to play in the employment of teachers, particularly as regards the terms and conditions under which they are employed. I note that section 24(3) of the Education Act, 1998 affords Boards of Management far more autonomy as regards appointment, suspension, dismissal and discipline in respect of teachers. The Decisions of this Tribunal cited by the respondent at paragraph 4.1 above all relate to issues covered by section 24(3) of the Education Act, 1998 and therefore quite rightly, in my opinion, find the respective Boards of Management as the correct respondent in those instances. The High Court judgement in Tobin also deals with suspension and dismissal of a teacher.
5.3 Evidence was given by Ms. H at the Hearing in respect of the process which must be followed by a teacher applying for paid study leave. The application must be submitted through the teacher's Board of Management, which must agree with the application and forward it to the Department of Education and Science for approval. I note that the complainant complied with this requirement and the BOM of her school supported her application and forwarded it to the Department on 31 March, 2004. It is clear therefore that the BOM had no role in making any decision on the application. In the course of the Hearing Ms. H gave evidence that she made the initial decision not to grant the complainant paid study leave, having regard to the Guidelines operated by the Department. Evidence was also given by Mr. F that he made the subsequent decision (on appeal) to uphold Ms. H's original conclusion and offer a period of unpaid study leave to the complainant instead. It is clear therefore, that if the complainant suffered less favourable treatment in respect of her application, it flowed from a decision of the Department and not her school's BOM. In light of my comments in this and the preceding paragraph I find that the Department of Education and Science is the correct respondent in the instant case.
5.4 I shall now examine the question of whether or not the complainant can cite Mr. A as a comparator for the purposes of her complaint. The respondent contends that the complainant did not specify an actual comparator by name when referring her complaint and only identified Mr. A in the course of the Hearing on 20 December, 2006. It argues that this equates to nothing more than a hypothetical comparator and does not comply with the requirement of the Acts, adding that the complainant's evidence as regards Mr. A's circumstances must be regarded as hearsay as the comparator did not attend the Hearing to give evidence on his arrangements with the respondent as regards study leave. At the outset I wish to point out that the Complaint Referral Form (Form EE.1) is not prescribed by statute and is intended to give a brief outline of the parties to and nature of, a complaint of discrimination under employment equality legislation. It is clear from the complainant's referral form that she was seeking to compare herself to an actual but unnamed Post-Primary Teacher who had been granted paid study leave. This is, in my opinion, entirely different from a hypothetical comparator. I note from her referral form that she indicates "I require information from the DES to complete this section properly" in response to the section where details of whom she compares herself are sought. The complainant had extensive correspondence with the Department about her original application, appeal and subsequent complaint to this Tribunal. I am satisfied that the first occasion she clearly sought material from then respondent which might elicit the name of Mr. A was 13 August, 2006, when she issued the Tribunal's Form EE.2 (Employment Equality Acts, 1998 and 2004 - Section 76 Questionnaire of the Complainant), which is a statutory document. The respondent states that it inadvertently overlooked responding to this but I note that it had decided, from December, 2004, not to engage in further direct correspondence with the complainant. It is clear that the identity of Mr. A - the only other Post-Primary Teacher to obtain study leave to pursue a Bachelor-at Law Degree between 2004 and 2006 - was known to the Department in August, 2006. However, it failed to disclose this information to the complainant. The non-disclosure of this information - information which was only within the remit of the respondent - clearly obstructed the complainant from fully advancing her complaint. If the respondent's arguments on this point were permitted it would impair the effectiveness of the protection afforded by the EU Equal Treatment Directive6 . It follows that where a complainant is obstructed by a respondent in obtaining evidence which is in the respondent's power of procurement, the complainant cannot be thus deprived from an effective means of advancing his/her claim and the respondent cannot derive an advantage from its own default7. . It is noteworthy the respondent confirmed in May, 2007 that the complainant was correct in her assertion that Mr. A was indeed the person she named in the course of the Hearing. I therefore find that the complainant is entitled to advance her claim citing Mr. A for comparison purposes.
5.5 I shall now deal with the substances of the complaint - that Ms. Skelly was discriminated against by Department of Education and Science in relation to her application for paid study leave. Section 85A of the Employment Equality Acts 1998 and 2007sets 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 when those facts have been established and are regarded by an Equality Officer as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised. The complainant contends that she was treated less favourably on grounds of her gender. In particular she seeks to compare her treatment to that afforded to Mr. A. I note that both of them sought leave to pursue a Bachelor-at-Law Degree, the complainant for the school year 2004/2005 and Mr. A during the following school year. The respondent furnished details of teachers who were granted both paid and unpaid study leave during both school years. Both the complainant and Mr. A were granted unpaid study leave. I am satisfied therefore that there was no difference in treatment between them. I note that both are recorded as having taken a years' unpaid leave, notwithstanding that the complainant commenced her period of unpaid leave on 11 October, 2004 and Mr. A commenced his on 1 September, 2005 - the start of that school year. I am satisfied, on balance, that the account given by Mr. F on this point accurately reflects the situation which prevailed in August, 2004 and that his decision was not tainted by gender discrimination, indeed it could be viewed as more favourable treatment as the complainant was in receipt of her full salary for a number of weeks into the school year - an arrangement not experienced by other teachers granted unpaid study leave. My decision on this point is supported by the fact that all seventeen teachers who availed of paid and unpaid study leave between 2004- 2006 did so on the basis of a single school year in each case. The details of teachers who were granted both paid and unpaid study leave during both school years furnished by the respondent show that there were males and females in both the paid leave and unpaid leave categories. I am satisfied therefore, that the respondent's decision was not based on factors connected with the applicants' gender.
5.6 The complainant asserts that applications in respect of career breaks and maternity leave were dealt with before the end of the school year (May, 2004) and her application was not deemed a priority. However, I accept the respondent's comments as regards career breaks and fully concur with its comments in respect of maternity leave. In addition, the Department must be allowed to determine its own workload priorities. The complainant also raises the issue of how the Department handled her application for a refund of fees. I note that the Refund of Fees Scheme is administered by another section within the Department and whilst there may be inter-section communication problems, I accept the Department's explanation for the confusion which surrounded this matter and cannot hold that it constitutes less favourable treatment of the complainant. The issue of which courses or professional qualifications should/do qualify for assistance under the respondent's Refund of Fees Scheme is a matter for negotiation between the Department and the relevant teachers' unions through normal industrial relations channels and is not a matter for this Tribunal, unless they fall foul of employment equality legislation. However, before concluding I feel it necessary to say that the lack of any formal and published criteria as to how applications for study leave are assessed, may pose an impediment to the Department in defending future allegations of discrimination, should a complainant successfully establish a prima facie case of discrimination. I would suggest therefore that the Department review this issue, if it has not already done so, to ensure that these criteria are available to applicants, as necessary.
6. DECISION OF THE EQUALITY OFFICER.
I find that -
(i) the Department of Education and Science is the correct respondent for the purposes of this;
(ii) the complainant is entitled to cite Mr. A as a comparator for the purposes of advancing her complaint and
(iii) the complainant has failed to establish a prima facie case of discrimination and her complainant must therefore fail.
____________________________
Vivian Jackson
Equality Officer
14 September, 2007
1 DEC-E2004-032
2 DEC-E2004-067
3 DEC-E2003-028
4 Unreported, High Court, Kearns J 21 March, 2000
5 Unreported, High Court, Kearns J 21 March, 2000
6 Council Directive 76/207/EEC of 9 February, 1976
7 See Diagio v O'Sullivan Labour Court Decision ADE 05/13