EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2010-189
PARTIES
Michelle McKeever
(Represented by INTO)
AND
Board of Management Knocktemple National School
(Represented by Tom Mallon BL instructed by
Mason Hayes + Curran Solicitors)
AND
Minister for Education & Science
File reference: EE/2007/666
Date of issue: 1 October 2010
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Religion - Access to employment.
1. DISPUTE
1.1 This dispute concerns a claim by Ms McKeever that she was discriminated against by the Board of Management Knocktemple National School and the Minister for Education and Science on the grounds of religion contrary to section 6(2)(e) of the Employment Equality Acts in relation to access to employment in terms of section 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 21 December 2007 under the Employment Equality Acts. On 25 November 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 26 May 2010 and final information was received on 5 July 2010.
2. COMPLAINANT'S SUBMISSION
2.1 The complainant submits that in May 2007 she applied for a permanent teaching post in Knocktemple National School. She was interviewed on 26 May and in late May or early June she was told that she was unsuccessful. On 28 June 2007 she received a phone call from the Principal who told her the school had a new post and offered her a permanent post. The complainant submits that she verbally accepted this offer. She received a letter dated 28 June 2007 from the Chair of the Board of Management confirming the appointment.
2.2 The complainant submits that on 5 July 2007 she received a call from the Chair of the Board of Management as the local priest had asked her to check a few things. She was asked if she had a Catholic religious certificate. The complainant said she did not have a certificate but she was familiar with and willing to teach the Alive-O religious programme. She also told the chair she was a member of the Church of Ireland and the Chair said it should not be a problem as she would be teaching 4th class which was not involved in Communion or Confirmation.
2.3 On 9 July 2007 the complainant wrote a letter accepting offer. On the same day she got a letter from the Chair stating that at a Board meeting "a question was raised regarding compliance with proper procedure for this appointment". Unfortunately, as a result your appointment was not proposed or seconded. On 10 July 2007 the complainant submits that she spoke to the Chair expressing her disappointment and she referred to their conversation about her religion. The Chair said it did not matter to her what religion the complainant was but she had been asked to enquire about it by the parish priest. On 12 July 2007 the complainant received a letter from the Chair writing in a personal capacity and not as Chair. The letter stated "The dept. regulations stipulate that permanent teaching post must be advertised and only temporary or part time posts may be filled from a previous interviews people" (sic) and confirmed that her appointment was not proposed or seconded. The Chair said she was told by Board members that due process had not taken place and the post must be advertised. She also confirmed; "With regard to the question of religion. During the previous week to the meeting I was asked by my Parish Priest to seek clarification as to whether you had a religious education cert and as to your agreement to teach religious subjects. This apparently is also standard because a teacher may refuse to teach religion to a class."
2.4 The post was subsequently re-advertised and the complainant submits that on 16 July 2007 she re-applied. In the same letter she requested clarification on the nature of the procedural error that led to the withdrawal of the offer of appointment. The complainant was called for interview but did not attend. On 26 July 2007 the complainant received a letter from the Chair of the Board of Management which stated that the Principal and herself offering the post "was a procedural error on my part as only the Board of Management has the right to appoint a teacher and in fact no meeting of the Board had taken place. At a subsequent Board meeting on Friday 6th where I informed the Board that I had written to you to confirm the post it was agreed by the Board that proper procedure was not in place."
2.5 On 26 July 2007 an INTO representative contacted the Principal who confirmed that the procedural difficulty was that the Chair wrote in advance of sanction by the Board of Management.
2.6 On 27 July 2007 INTO wrote to the Board of Management pointing out Appendix D of the 'Boards of Management of National Schools - Constitution of Boards and Rules of Procedure' which states; "the advertisement may also state: ... whether or not a list of suitable applicants may be set up from which suitable vacancies may be filled (valid for the four month period from the date of the advertisement. This particular list may only be compiled if it has been referred to in the advertisement." INTO pointed out that the advertisement had stated that such a panel would be set up and therefore there was no reason why the complainant could not have been appointed. The Chair of the Board of Management replied on 15 August 2007 which confirmed there had been a fundamental failure to follow procedure in offering the appointment "without the knowledge, approval or decision of my board of Management." INTO wrote again to the Board of Management on 23 October 2007 and to the Patron of the school on 30 November 207 he replied indicating that he had asked the Diocesan Education Secretary to set up a committee to investigate the matter but nothing further was heard.
2.7 INTO also wrote to the Department of Education and Science on 30 November 2007 regarding procedures in relation to appointments but got no reply.
2.8 The complainant submits that the failure to confirm her appointment occurred within 24 hours of the Chair's enquiries regarding religion and that this amounts to a prima facie case of discrimination.
2.9 The complainant submits that the Department of Education and Science is involved in the appointment process of teachers as the procedures are set out in 'Boards of Management of National Schools - Constitution of Boards and Rules of Procedure' which is promulgated and issued by the Department. Also, the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is "subject to the sanction of the Minister". Furthermore, the complainant submits that the Department is a joint employer of teachers in National Schools as it is a party to the contract of employment. The complainant relies upon Labour Court Determinations DEP3/1987, Employment Equality Agency v Department of Education and DEE025 Sheils O'Donnell v Board of Management of St. Baithin's N.S. and the Department of Education and Science.
FIRST NAMED RESPONDENT'S SUBMISSION
BOARD OF MANAGEMENT KNOCKTEMPLE NATIONAL SCHOOL
3.1 The first named respondent submits that a post arising from the creation of an Autism Unit in the school was advertised on 5 May 2007 and the advertisement stated that "a list of suitable applicants may be set up from which future vacancies may be filled within a four month period from the date of this advertisement". The complainant applied for the post and was interviewed but was unsuccessful. The Principal subsequently rang the complainant offering her a new vacancy which was not anticipated by the respondent when the advertisement for the post in the Autism Unit was advertised. On 28 June 2007 the Chair sent the complainant a letter confirming she had been appointed to the post of mainstream teacher in Knocktemple National School.
3.2 The first named respondent submits that neither the Principal nor the Chair of the Board of Management had the authority to make such an offer to the complainant without their authority, the Board of Management of Knocktemple National School, as it is the statutory employer, pursuant to Section 24(3) of the Education Act, 1998. The procedures for appointing teachers are set out in Appendix D of 'Boards of Management of National Schools - Constitution of Boards and Rules of Procedure' and the High Court decision in Browne v Rathfarnham Parish National School found the application of these procedures to be mandatory.
3.3 The first named respondent submits that Section 2 of Appendix D provides that the advertisement may state that a list of suitable applicants may be set up from which future vacancies may be filled. It is clear that this is a discretionary power. It is accepted that the advertisement contained the discretionary option but it is clear that a decision of the Board of Management needs to be taken in order for this option to be exercised. The respondent submits that Section 5 of Appendix D deals with the procedures for interviews and appointments and these procedures were followed by the Board of Management. At no meeting did the Board of Management take a decision to exercise the discretionary function and set up a list of suitable applicants from which future vacancies may be filled.
3.4 The first named respondent submits that as no list was created it was not open to the Principal or the Chair of the Board of Management to offer the newly created post and when they did make the offer it amounted to a fundamental breach of procedures. When this was realised the Chair wrote to the complainant on 9 July 2007 rescinding the offer of employment.
3.5 The first named respondent submits that where. as in this case, there is a question mark as to whether there was a fundamental breach of procedures the prudent course of action is to re-advertise the post and relied on Equality Tribunal Decision DEC-E2004032, McGinn v The Board of Management St. Anthony's Boys National School, Kilcoole, Co. Wicklow. The complainant was notified of the breach of procedures at the earliest opportunity, then the respondent re-advertised the post. The complainant applied for the post but declined to be interviewed.
3.6 The first named respondent submits that the Chair did make an informal enquiry as to whether the complainant had a Certificate in religious education. The complainant volunteered that she was a member of the Church of Ireland but she was not questioned about her religious affiliation or otherwise. The respondent denies that any discrimination occurred on the grounds of the complainant's religion.
SECOND NAMED RESPONDENT'S SUBMISSION
Department of Education & Science
4.1 The second named respondent submits that they have no involvement in the recruitment of teachers and section 24(3) of the Education Act 1998 leaves no doubt that it is the Board of Management which has the responsibility for appointing "teachers and other staff" of a school. The second named respondent has no correspondence in relation to the complainant's application for a teaching post in Knocktemple National School. There are agreed arrangements for the filling of teaching posts in national schools and it is the responsibility of the Board of Management to advertise for and recruit teachers. The procedures are set down in 'Boards of Management of National Schools - Constitution of Boards and Rules of Procedure' and are drawn up in consultation with the education partners.; school management authorities, teacher representatives and Department representatives. Appendix D of the procedures sets out that all appointments shall be made by the Board of Management, subject to the prior approval of the Patron of the school. Each teacher is employed under a contract of employment with the Board of Management and the respondent is not party to the contract.
4.2 The second named respondent's role is confined to paying teacher's salaries and superannuation benefits, determining the terms and conditions of employment and determining the required level of teacher qualifications.
4.3 The second named respondent has no role in the appointment of the Board of Management. Under section 14(1) of the Education Act 1998 this is the responsibility of the Patron of the school.
4.4 The second named respondent relies on Equality Tribunal Decision DEC-E2003-023, Bleach v Our Lady Immaculate Senior School to support their submission that they have no role in the recruitment of teachers.
5. CORRECT RESPONDENT
I must first consider if both respondents who are named by the complainant could be responsible for the alleged discrimination. The alleged discrimination revolves around the recruitment of the complainant as a teacher to Knocktemple National School. The Board of Management of Knocktemple National School have clear responsibility for the recruitment of teachers to Knocktemple National School and this is accepted by all parties to this claim. The complainant considers that the Minister for Education and Science is also responsible for two reasons:
- firstly, because the procedures for the recruitment of teachers to national schools are promulgated and issued by the Department of Education and Science. However, the Department contends that the procedures are drawn up in consultation with the education partners and they co-ordinate the drafting and publication of the procedures and they have no role in the recruitment of teachers. This is carried out by the Board of Management, who issue the contract of employment. I conclude there is a clarity in relation to the recruitment of teachers to national schools. The procedures are issued by the Department and are implemented by the Board of Management. This means that the Department has no direct role in the recruitment of teachers. Furthermore the complainant did not take issue with the procedures;
- secondly, because the complainant contends that the procedures specifically advise that the notification of a teacher who is appointed to a post should be accompanied by advice that the offer is subject to the sanction of the Minister. Section 6 of Appendix 4 of the Procedures states:
"(i) Having received approval in accordance with 5 (xii), the Board shall notify the teacher of his/her appointment. The successful candidate should be advised that the offer is subject to the sanction of the Minister, registration with the Teaching Council, and vetting clearance.
(ii) As soon as the Board of Management has received notification of the teacher's acceptance of the post, all unsuccessful candidates shall be notified. Both the successful candidate and the Chairperson shall complete the relevant appointment form and forward it to the Primary Payments Section of the Department of Education and Science. If the post is warranted and the Chairperson of the Board certifies that the teacher has met the criteria and the appointment has been made in accordance with the procedures outlined in this appendix, the Minister for Education and Science will sanction the appointment."
At the hearing the Department clarified that sanction would only be withheld if the post had not been sanctioned by the Department. I take this power to be an administrative tool and not one that is intended to have any role in the recruitment process.
This a claim of discrimination in relation to access to employment and I conclude that the second named respondent had no involvement in the recruitment process which led to this complaint. Therefore it is not a body which could be responsible for the alleged discrimination in relation to access to employment.
6. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
6.1 I must decide if the complainant was discriminated against in relation to access to employment on the grounds of religion by the first named respondent (Board of Management of Knocktemple National School). In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
6.2 The facts in this claim are that the complainant was interviewed for a position in the Autism Unit and was unsuccessful. Approximately one month later on 28 June 2007 she was contacted by the Principal and offered a new main stream teacher post that had arisen following the initial interviews. The complainant verbally accepted the offer and received a letter dated 28 June 2007 from the Chair of the Board of Management confirming the appointment. On 9 July 2007 the Chair wrote to the complainant withdrawing the offer as "a question was raised regarding compliance with proper procedure for this appointment." On 12 July 2007 the Chair explained the reasons for withdrawing the appointment she advised the complainant, in what she described as a personal note, that "The dept. regulations stipulate that permanent teaching post must be advertised and only temporary or part time posts may be filled from a previous interviews people". The post was then re-advertised and the complainant submitted an application but did not attend for interview.
6.3 The initial explanation given to the complainant was that only temporary or part time posts may be filled from people who have been previously interviewed. However this is not correct as the procedures pertaining at that time contained no such proviso. Subsequently, the respondent contended that as names had not been submitted for their approval from the initial interviews to make a panel for future vacancies then the Principal and the Chair of the Board of Management did not have the authority to offer the post to the complainant. They contend that this was a serious breach of procedures and meant they were unable to approve the appointment and the post had to be re-advertised.
6.4 Appendix D, section 5 of the Procedures states:
"(ix) Having interviewed such applicants as present themselves, the Selection Board shall submit a written report to the Board of Management, nominating the applicant whom it considers suitable for appointment.
(x) A list in order of merit of other candidates who are also deemed suitable shall be retained by the Selection Board for use in the event of the post not being filled by that nominee.
(xi) The Board of Management shall appoint the teacher so nominated unless it has good and sufficient reason not to do so, in which instance the matter shall be referred to the Patron, whose decision in this matter shall be accepted by the Board. When offering the successful applicant employment the Board should ensure that the applicant is vetted. School authorities shall ensure that vetting is only sought in respect of a person to whom it proposes to make an offer of appointment."
The Principal gave evidence at the hearing that the complainant came second in the initial interviews for the post in the Autism Unit and would have been offered that post if the person who came first had turned down the offer. He also confirmed that no interview notes were available and no panel was drawn up for future appointments. It was also confirmed that the interview panel did not prepare a Report for the Board of Management to approve the complainant's appointment but could give no explanation as to why it was not prepared. The respondent also contended that there was a difference between the two posts; the first being in the Autism Unit and the second being a main stream position teaching fourth class. This was shown by only five applicants being received for the first post and 35 for the second.
6.5 However, I must consider why the respondent considers the actions of the Chair to be such a fundamental breach of procedures. The minutes of the Board of Management of 5 July 2007 do not clarify the situation they state: "Staffing; Ratification of Michelle McKeever for main stream post. Post offered to her. Board affirmed/deferred their decision. Details sent to Patron for approval." At the hearing the respondent contended that the minute read "deferred their decision" whilst the complainant contended it read "affirmed their decision". There is no mention of the procedural error or the need to re-advertise the post. The minutes of the next meeting on 20 July 2007 state: "Discussions regarding Michelle McKeevers appointment for full time post. Michelles position appointment has been declined and re-advertised. Closing date for application is 26 July." Given the respondent's contention that they adhere to procedures it is surprising that major decisions made by the Board are not reflected in the minutes of their meetings.
6.6 Therefore I must look at the complainant's contention that the matter of her religion became a factor that was taken into account at the meeting of the Board of Management on 5 July 2007. The complainant stated that the Chair rang her on 5 July 2007 as she said she had been requested to ask about the Certificate in Religious Education by the Parish Priest, who was on the Board of Management, and she re-affirmed this in a telephone conversation on 10 July 2007 and in her personal letter written on 12 July 2007. The Chair was not available to give evidence at the hearing but the Parish Priest gave evidence that he knew nothing about the complainant's religious certificate before the Board meeting when her appointment was considered. He went on to say that it was usually on a candidate's CV and they would be asked at interview. The Principal confirmed that the complainant was not asked at interview. The Parish Priest stated that he was unaware of the complainant's religion until a long time after she was considered for the vacancy. However, another Board member stated at the hearing that the complainant's religion was mentioned at the Board meeting but was not an issue for the school. This was confirmed at the hearing by the Principal who was also at the Board of Management meeting.
6.7 On the balance of evidence before me I conclude that the Board of Management meeting on 5 July 2007 was advised by the Chair that the complainant did not have a Catholic Religious Certificate but was familiar with and willing to teach the Alive-O programme and that she was a member of the Church of Ireland.
6.8 What is less clear is why this discussion took place and then the Board decided that there had been a fundamental breach of procedures. I would have expected the Board to discuss the procedure of appointment from the first set of interviews before considering an individual's suitability. If they had seen a difficulty in confirming an appointment that had been offered without their approval I would expect that to have been clearly stated in the minutes of the meeting of 5 July 2007. Furthermore they could have accepted the proposal of the Chair and the Principal, who were both on the initial interview board and ratified the offer at that meeting, albeit retrospectively. However, given the different explanations provided by the then Chair, firstly that permanent appointments could not be made from previously interviewed people and secondly that the Principal did not have the authority to make an offer without the approval of the Board of Management, I conclude that not only was the complainant's religion discussed but it influenced the Board of Management in withdrawing the offer that had been made. I therefore find that this amounts to discrimination on the grounds of religion.
7. REDRESS
7.1 Section 82(4) of the Acts states: "The maximum amount which may be ordered by the Director by way of compensation ... where the complainant was in receipt of remuneration at the date of reference of the case .... shall be an amount equal to 104 times the amount of that remuneration, determined on a weekly basis ... and in any other case be £10,000." As this claim is in relation to access to employment then any redress ordered would be limited to £10,000 (€12,697) as the complainant was not in receipt of remuneration. The complainant argues that this level of redress awardable under the Employment Equality Acts is inadequate, ineffective and in breach of the Equal Treatment Directive 76/207/EEC and the Recast Directive 2006/54/EC. She relies on Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 which held that in order to ensure compensation awarded for sanction for the breach of prohibition of discrimination "is effective and has a deterrent effect" then that compensation "must in any event be adequate in relation to the damage sustained and must therefore amount to more than a purely nominal compensation."
7.2 The first named respondent submits that the Directives and cases relied on by the complainant relate solely to the elimination of gender based discrimination and therefore have no role in relation to claims made on grounds other than gender, such as this. They also submit that the Recast Directive states: "Such compensation or reparation may not be restricted by the fixing of a prior upper limit, except in cases where the employer can prove that the only damage suffered by an applicant as a result of discrimination within the meaning of this Directive is the refusal to take his/her job application into consideration." This, they contend, clearly limits compensation in access to employment cases.
7.3 The Labour Court in Irish Aviation Authority v CPSU, ADE/06/6, determination no. EDA073 stated: "The supremacy of Community law over national law was established as long ago as the case of C-26/63 Van Gend en Loos [1963] ECR 1. National law must always give way to the Treaty Articles and Regulations provided they are sufficiently precise and unconditional.....It follows that where a provision of national law conflicts with the wording and purpose of the Directive and is in conflict with the aims expressed in the Treaty that provision cannot be regarded by the national Court charged with implementing the provisions of the Directive as having any validity." I conclude that the Employment Equality Acts do not conflict with the EU Directives in relation to redress in access to employment claims. The maximum redress awardable is not nominal and this together with the power under section 82 (1) to make orders in my view satisfies what was stated by the European Court of Justice in the Von Colson & Kamann v Land Nordrhein-Westfalen case that the remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be "effective, proportionate and dissuasive".
DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of religion contrary to section 8 of the Acts and in accordance with section 82 of those Acts:
- I order the first named respondent to pay the complainant €12,697 in compensation for the discriminatory treatment suffered. This figure is the maximum award where a complainant was not in receipt of remuneration. It represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
- I order the first named respondent to follow good practice in relation to the recruitment of staff; by following the procedures laid down, by keeping adequate records of all interviews and decisions by the interview board. Also that all decisions of the Board of Management are properly recorded in their minutes.
____________________
Hugh Lonsdale
Equality Officer
1 October 2010