DEC-E2008-036 - Full Case Report

The Equality Tribunal

EMPLOYMENT EQUALITY ACTS 1998 - 2007

EQUALITY OFFICER’S DECISION DEC-E2008-036

PARTIES

Ms Ann Cullen

AND

County Louth VEC

(Represented by Arthur O’Hagan Solicitors)

1.      DISPUTE

1.1    This dispute concerns a claim by Ms Ann Cullen that she was discriminated against in relation to promotion/re-grading by County Louth VEC on the grounds of gender, family status and age in terms of section 6 of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts, and was discriminated against under an equality clause, in accordance with section 21 and suffered victimisation in accordance with section 74 (2).

1.2    The complainant referred her claim of discriminatory treatment and victimisation to the Director of the Equality Tribunal on 16 June 2004 under the Employment Equality Acts 1998 and 2004.  In accordance with her powers under section 75 of the Acts, the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts.  Submissions were sought and received from the parties, and a hearing was held on 6 December 2007.

2.      SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant has worked for the respondent at O’Fiaich College in Dundalk since 1974 and submits that she was discriminated against in two incidents and that the second is linked to the first.

2.2 The complainant submits that she took a career break from 1990-1995 to look after her family and the first incident occurred as she prepared to return in August 1995 and she was discriminated against on the grounds of family status and gender. She had a meeting in March 1995, with the CEO of County Louth VEC and the Principal of O’Fiaich College and was told that she could not return to the main teaching job she had before going on a career break. Most of her teaching would be moved away from Secretarial Studies to English. The complainant submits that this was unnecessary as the secretarial course was as strong in 1995 as it was in 1990. The complainant also submits that it was proposed to give her overbearing duties for her A post. As a consequence she resigned from the A post in April 1995. The complainant submits that this also had a bearing on a subsequent interview in November 2003 (see 2.4 below), as she was asked why she had resigned her A post.

2.3 She submits that she suffered further discrimination on her return from her career break as she was not sent on any in-service courses during the 1995/96 school year.

2.4 The complainant submits that the second incident took place on 10 November 2003 when she was interviewed for the post of Programme Co-ordinator in O’Fiaich College and was unsuccessful. She submits that she was not treated equally and was discriminated against on the grounds of age and gender, as she was as qualified as the successful candidate who was younger and male, in that:

• She had longer service, 29 years, than the successful candidate who only had 6 years teaching experience,
• she would therefore have contributed more to meeting the needs of the school during this time,
• she had held both A and B posts, giving her more experience on a professional nature in the field of education,
• she had taught a B. Tec Diploma course,
• she also felt that no recognition was given for the teaching on Leaving Certificate Vocational which was very relevant to the position, nor to the upgrading of her qualifications and skills.

2.5 On 27 April 2004 the complainant requested information on the marks awarded at the interview but was told by County Louth VEC on 4 May 2004 that it was not their policy to give out individual marks.

3. SUMMARY OF THE RESPONDENT’S CASE

3.1 The respondent raised a preliminary issue in relation to the first incident, which took place in March 1995 when the complainant was returning from her career break. They submit that it is out of time, as it was prior to the Employment Equality Act, 1998 and this Act does not allow for retrospective claims. Furthermore, whilst it is accepted that the complainant was asked during her interview in December 2003 why she resigned from her A post in April 1995, they submit that there is no chain of events that link the events surrounding her return from career break to the interview that took place in November 2003 and seek to rely on Hendricks v Commissioner of Police of the Metropolis¹.

3.2 Without prejudice to their contention that the first incident is out of time they made submissions that no discrimination took place regarding the complainant’s return from career break in 1995. When the complainant returned from career break it was not possible for her to return to the same teaching duties after five years, particularly as secretarial studies were being phased out in favour of business courses. However, every effort was made to ensure she was teaching subjects close to her previous experience and to accommodate the complainant’s concerns. The respondent also submits that the proposed A post duties would not have been overbearing as the complainant submitted.

3.3 The respondent submits that it promotes in-career development and all staff are encouraged to apply to go on relevant courses. However, the complainant did not apply for any in-service courses in 1995/96.

3.4 The respondent denies discrimination in relation to the second incident; the interview for the Programme Co-Ordinator position that took place on 10 November 2003. The respondent submitted that the post of Programme Co-Ordinator was established by the Department of Education and Science in all vocational schools that offered any of the following programmes: Leaving Certificate Applied Programme, Leaving Certificate Vocational Programme, Transition Year and Junior Certificate Schools Programme. Department of Education and Science Circular PPT 19/02 set out the selection procedure and duties of the post, and the respondent submitted a copy of this Circular. The first stage was the appointment of the interview board, which was made up of:

·       Senior Representative, Mr Eamonn Kinch, Chairperson of County Louth VEC and lecturer in Business Faculty in Dundalk IT;

·       Personnel Representative, Mr Eamonn Cooney, Education Officer with County Louth VEC and a former principal; and

·       Education Expert, Ms Mary Duffy, NUI Maynooth, H. Dip Programme assessor of trainee teachers, TUI nominee.

3.5 All members of the interview board gave evidence at the hearing that they carried out their duties in accordance with the circular and Circular Letter 43/00, ‘Revised Selection Procedures for the Appointment and Promotion of Teachers in Vocational Schools’ and that no discrimination took place. Their evidence was that they did not keep contemporaneous notes and they did not give individual marks but discussed each candidate under each heading and entered an agreed mark. The respondent provided the marks awarded under the three categories which showed that the complainant, the successful candidate and the other three candidates were marked as follows:

They submitted that the differences in marks arose for the following reasons:

1.   Capacity of applicants to meet the needs of the school (50%), which fell into 3 main areas:

a.   Knowledge and awareness of relevant educational issues including the school’s present provisions and structures: the complainant failed to display an in-depth knowledge of the Programmes in O’Fiaich College which was a serious deficiency as the post was co-ordinating these programmes. Furthermore, the complainant showed little evidence of an awareness of the existence and needs of a significant number of students who have special educational needs.

The successful candidate displayed knowledge of the programmes, as well as an understanding of the school community and its needs. His interview showed clear evidence of a plan to develop an organised approach to these programmes

b.   Capacity to fulfil a middle management role by meeting the needs of the school as set out in the schedule. Contribution to the overall management, organization and development of the school. Communication and organisational skills.

The respondent stressed that the selection criteria emphasized the management function of the position and the post is not awarded on past service to the school. The responsibilities of managers has increased dramatically in schools in recent years; including many codes of conduct, health and safety legislation and other legal responsibilities. The complainant failed to demonstrate any significant or detailed knowledge of the recent Education Acts, and specifically the special programmes which the post of Programme Co-ordinator is required to co-ordinate. The successful candidate demonstrated a much greater management ability and willingness to fully engage with the challenges of the growing school. He showed a detailed knowledge of the school’s responsibilities in this area, an understanding of the challenging nature of the post and particularly knowledge of the requirement and demands of students with attendance issues.

c.    General presentation of case, including application/CV.

The interview board submitted that the successful candidate gave far more detailed, planned and focused answers in the application form than the complainant. Also the successful candidate gave clear, focused, well thought out and detailed answers during the interview. The complainant concentrated on her past teaching career. Her answers were less well thought out and did not show the same ability, skill or insight into the demands of the position as he successful candidate. Furthermore, all candidates were given the opportunity to make a presentation to the interview board and the successful candidate made a good presentation but the complainant decided not to make a presentation.

2.   Service to the school (30%): the longest serving candidate is awarded is awarded 100% of the available marks ant the other candidates are awarded marks on a pro rata basis. The interview board confirmed that these marks are awarded after the interviews and they would not have known what these were but would have had an idea from the application forms.

3.   Experiences of a professional nature in the field of education and involvement in the school (20%), was split into 5 areas:

o      Personal professional development through in-career and/or external programmes,

o      Involvement with Board of Management, Parents’ Association, representative bodies, school committees,

o      Work in association with educational bodies and institutions,

o      Course/subject development, co-ordination of courses,

o      Involvement in organising school events.

The complainant scored less well than the successful candidate as she was:

·       Not involved in further studies,

·       Not involved with the Board of Management or Parents’ Association, or a member of any school committee.

·       Not a co-ordinator of any course or programme

·       Not involved with course reviews,

·       Not an active member of a subject association or professional body.

Whereas, the successful candidate was:

·       An active member of two professional bodies, extensively participated in in-career development,

·       Had a close association with the Parents’ Association, was an active member of a number of school committees

·       Co-ordinator of the JCSP programme,

·       Closely associated with NCCA re course review of JCSP,

·       Actively involved in a range of sporting and extra-curricular activities.

3.6 The respondent submits that the interview board gave marks according to the criteria set down in the Department of Education’s circulars and that the marks reflect the candidates overall performance. The post of Programme Co-Ordinator was a senior management role requiring particular skills and that the successful candidate was judged from his application form and interview to be the best candidate for this particular role.

3.7 The respondent submits that the recruitment was carried out fairly and according to the Department of Education and Sciences circulars and, furthermore, that the complainant has failed to show any evidence of discrimination and relies on the Labour Court determination in Co Louth VEC and Don Johnson²

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The complainant claims that she was discriminated against in relation to promotion/re-grading and victimised by County Louth VEC on the grounds of gender, family status and age in terms of section 6(2) of the Employment Equality Acts, 1998 – 2007 and contrary to section 8 of those Acts and suffered victimisation in accordance with section 74 (2). In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. No evidence was adduced in relation to the claim of discrimination under an equality clause or victimization. I am therefore making my decision on a claim of discriminatory treatment in relation to promotion/regrading on the grounds of gender, family status and age.

4.2 The first issue I must consider is the preliminary issue raised by the respondent. They contend that the first incident, when the complainant returned from a career break in 1995 and alleges that she was discriminated against on the grounds of family status and gender, is out of time. Section 77 (5) (a) of the Employment Equality Acts, 1998 – 2007 states:

“a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case be, the date of its most recent occurrence.”

It is possible to refer a complaint of a number of events of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events. In this case there are two incidents that are eight years apart with no events in between. The complainant made the case that the two incidents were linked because she was asked at the interview in 2003 why she had given up her A post in 1995. However, I find that this is not of sufficient significance to give the inference of a chain of events and that the first incident is out of time.

4.3 I will now look at the second incident which is the claim of discrimination on the grounds of gender and age arising from the interview for the post of Programme Co-Ordinator. Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.

4.4 In this case the complainant has over twenty years more teaching experience than the successful candidate and had held both A and B posts, whereas the successful candidate had held no posts of responsibility and I consider these to be sufficient primary facts to establish a prima facie case and the burden of proof thus passes to the respondent to prove that no discrimination took place.

4.5 To decide if they have I must scrutinise the work of the interview board who said they carried out the selection process in accordance with the Department of Education and Science Circulars. Whilst these circulars give a structure for the indicative areas on which candidates should be questioned and marked they give no guidance as to whether any or what records should be kept or if marks should be awarded individually or collectively. However, the Labour Court in the Department of Health and Children v Gillen set out that a lack of transparency is one of a number of tests that have been used in considering whether to draw an inference of age discrimination and that, “a failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination”. Individual members of interview boards should take contemporaneous notes of the interviews and all candidates should be marked separately by each member of the board. These notes and marks are then available for scrutiny if a complaint arises. In this recruitment process notes were not kept by the interview board and following each interview they discussed the candidate under each heading and then entered an agreed mark.

4.6 As set out in the Labour Court in Co Louth VEC v Johnson _⁽²⁾“it is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the gender status or age of the complainant influenced the decision of the employer. In this case the lack of interview notes and the collective marking gives rise to a concern about the lack of transparency which makes it harder to rebut that an objective recruitment process took place. However, all three members of the interview board all gave direct evidence and I found their evidence to be credible. In order to assess the objectivity of the interviews I will look at the three categories in which marks were awarded.

4.7 Category 1, capacity of applicants to meet the needs of the school, accounted for 50% of the marks and there was a difference of 17 between the complainant and the successful candidate. The interview board’s evidence was that the complainant failed to show, either on her application form or at interview, any depth of knowledge of the programmes to be co-ordinated, or of the Education Acts, or an awareness of the school’s responsibilities and challenges at a management level all of which were required of the post.  Whereas the successful candidate demonstrated that he met these requirements both in a very well presented application form and at interview during questions and, also, in a presentation he chose to make but the complainant did not. The complainant thought she was confined to the printed application form, that she was not made aware of the importance of making a presentation and the interview board did not ask her about the teaching she had carried out on the programmes. The respondent said there were no guidelines regarding the completion of application forms, they considered the purpose of the application form was to get as much information as possible but in a structured format and increasingly applicants were choosing to complete them on a computer, which the successful candidate did. The applicants were not given extra marks for making a presentation and that it was included in the overall interview time. This they contended meant the complainant was not disadvantaged but they also stated that the successful candidate made a good presentation which showed his vision for the post. The interview board stated that the complainant would have had an opportunity to make sure they were aware of anything not covered in their questions as all candidates were asked at the end of the interview if there was anything else they wanted to add. I accept that, in the opinion of the board, the successful candidate presented himself as an excellent candidate in this category and the complainant did not present herself well for this particular management post and this explains the gap in marks.

4.8 Category 2 (service to the school) was based on purely objective criteria and the difference in service meant that the complainant scored 21.25 marks more than the successful candidate.

4.9 In category 3 (experiences of a professional nature in the field of education and involvement in the school) the interview board gave the successful candidate 5 more marks than the complainant and highlighted the differences in the current activities of the complainant and the successful candidate in the school. The complainant gave no evidence of current involvement in the school beyond her teaching duties.  However, she claimed that it was discriminatory to be asked why she had given up her A post in 1995, as it related to her returning from a career break that was taken to look after her family. The interviewer who asked the question accepted that he asked the question but contended that it was not meant to be taken in a negative manner but asked in relation to the complainant’s involvement in the school. I note that the complainant did not give up the A post to go on a career break but when she returned from a career break. Therefore I do not find that an inference of discrimination can be taken from this question. The respondent gave evidence of the successful candidate’s involvement with two professional bodies, the Parents’ Association, a number of school committees, a range of sporting and extra-curricular activities and as co-ordinator of the Junior Certificate Schools Programme. I accept the board’s opinion that the difference of 5 marks in this category can be explained by the differences in involvement of the two candidates.

4.10 The complainant received due recognition for her service in the school and has shown no other area of experience, qualification or skills from which it may be inferred that she did not receive due recognition in the interview process. The interview board showed several significant differences between the candidates which I am satisfied account for the marks awarded. Itherefore conclude that the interview process was carried out fairly and that the gender or age of the complainant did not influence the decision of the interview board.

5. DECISION

On the basis of the foregoing I find that:

• that the complainant’s claim in respect of discrimination when she returned from a career break in 1995 is out of time and therefore cannot be the subject of a claim under the Employment Equality Acts, 1998 to 2007.  

·       the respondent did not discriminate against the complainant on the gender and age grounds in terms of Section 6(2)(a) and (f) and in relation to promotion/re-grading contrary to the provisions of Section 8(d) of the Employment Equality Acts, 1998 to 2007.

_________________

Hugh Lonsdale

Equality Officer

3 July 2008

¹ Joy Hendricks and The Commissioner of Police of the Metropolis; [2002] EWCA Civ 1686

² Co Louth VEC and Don Johnson; ADE/07/3, Det No EDA0712

 Department of Health and Children v John Gillen; Det No EDA0412