FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DUN LAOGHAIRE VOCATIONAL EDUCATION COMMITTEE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOAN GALLAGHER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 17th February, 2012. A Labour Court hearing took place on the 26th June, 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Joan Gallagher (hereinafter called “the Complainant”) against the Decision of an Equality Officer in a claim alleging discrimination on the family status ground by Dun Laoghaire VEC (hereinafter called “the Respondent”).
The Complainant complained that she was discriminated against on the family status ground in terms of 6(2) (c) of the Employment Equality Acts 1998 - 2011 ('the Acts') in relation to access to promotion, conditions of employment and training. She also claimed that she was victimised contrary to the provisions of section 74 (2) of the Acts.
Based on the evidence adduced, the Equality Officer held that the Complainant had failed to establish aprima faciecase of discrimination on the ground of family status in relation to access to promotion, conditions of employment or training and therefore held that the complaints of discrimination were not well-founded. The Equality Officer did not uphold the complaint of victimisation made pursuant to Section 74(2) of the Acts.
The Complainant appealed the Equality Officer’s decisions on discrimination; she did not appeal the decision concerning her claim of victimisation.
Background
The Complainant has been employed by the Respondent since 1988. She was made permanent in 1992 and is now a whole-time Teacher of Commerce with an Assistant Principal post of responsibility in Senior College Dun Laoghaire (“the College”).
Summary of the Complainant’s Case
The Complainant submitted to the Court that the Respondent began to discriminate against her on the family status ground in May 2001 while she was on maternity leave with her second child. She said that at that time the then Principal of the School, Mr G, rang her to say that they were restructuring management functions within the College and he asked her opinion on giving one of her areas of responsibility (management of the Business Studies Department) to another member of staff (with no children). She said that when she asked was there a problem with her management Mr G replied'No, not at all but we think you have enough to do with the Multimedia Department, the new baby and your family'.The Complainant submits that she subsequently found out that the decision was already made.
Furthermore, she contended that in May 2002 when the position of Assistant Principal/ Head of the IT Department became vacant the Respondent disregarded its established practice of giving it to the most senior Assistant Principal (the Complainant). Moreover, she alleges that sometime around the end of 2004 the then Principal Mr O’Callaghan made a remark at a meeting organised to discuss timetables when the issue of an extra hour being added to the timetable was discussed. She maintained that when the Chairman of the Trade Union (the TUI) brought to the Principal’s attention that this extra hour had a disparate impact on staff with families, in particular, job-sharers, the Principal replied that‘married women with children should do as his wife had done, that is, give up work and stay at home’.
The Complainant alleged that in October 2006 when a vacancy arose for a newly created Deputy Principal position that a candidate without family status Ms X, was successful. She contended that the only reason the successful candidate was appointed was because she had previously been given preferential treatment (receiving ‘secret’ training and had her teaching commitment reduced for no legitimate reason) and she had no children.
Claim: Conditions of Employment
In May 2002 the College reduced the teaching hours of Ms X and her teaching hours were further reduced in May 2004. The Complainant alleges that these actions were discriminatory on the family status ground as Ms X was treated differently to all other Assistant Principals/Department Heads.
In May 2005,the then Principal,Mr O’Callaghan, introduced new procedures in relation to the placement of management hours on Assistant Principals’ timetables.Assistant Principals were timetabled to be on the College premises from 4pm to 5pm for a day or two a week with no specific duty assigned. The Complainant submitted that this had a disproportionate impacton her due to her family status.
Claim: Training
The Complainant alleged that the Respondent through its constituent College did not offer or afford her the same opportunities for training and/or work experience as were afforded to another employee, Ms X, in circumstances in which she [the Complainant] and other Assistant Principals/Department Heads were not materially different, in contravention of Section 8 (7) of the Acts:
"the non affordability of the same opportunities for training and work experience as the employer offers or affords to other employees where the circumstances in which that employee and those other employees are employed are not materially different".
The Complainant contended thatfromSeptember 2004Ms Xwasafforded promotional work experience opportunities i.e. supervising/overseeing the work of other Assistant Principals/Department Heads and Special Duties Teachers in the Blackrock Campus to match theduties of what were eventually to become the duties of the newly created secondDeputyPrincipal/Administrative Head position to which Ms X was appointed in October 2006.The Complainant submitted that the reason for this action was due to the Respondent’s anxiety to ensure that Ms X became the successful candidate as she had no family status. The Complainant submitted that this coupled with the provision of specific training (on a Timetabling Software Package) afforded solely to Ms X and not to the Complainant or other Assistant Principals was entirely due to her family status and therefore in contravention of the Acts.
Claim: Access to Promotion
The Collegequalified for a second Deputy Principal postinOctober2006, the Complainant applied for the post and was unsuccessful. She claimed that her failure to be appointed to the post was due to herfamily status.
There were six applicants for the post, five internal and one external.The Complainant contended that her candidature for the position was not considered seriously by the Respondent due to her family status. She contended that there was an arrangement between the College, the Respondent and the successful candidate, Ms X(with no family status), that Ms X should be successful.
The Complainant held the view that the Respondent’s recruitment and selection process for the position was not conducted in an open and transparent manner, based on the following:
- • irregularities before the interviews
• preparation of the Interview Board
• the interview itself
• no notes retained of the interview process
• post-interview,the immediate appointment
- •Irregularities Before the Interviews
The Complainant contended that the Respondent approached these interviews without any clear standards and without any specific objective criteria against which to measure candidates to ensure a fair and transparent result. The Complainant referred to a document (herein after called “untitled document”) which was supplied to her by the College prior to the interview. The Complainant submitted that this document proved that the Respondent did not interview for a generic Deputy Principal as advertised but for an ‘Administration Head',the position held by Ms X in the Blackrock Campus. The Complainant submitted that Ms X had supplied job description details of her position as Administration Head in the Blackrock Campus to the Respondent when requested to do so in May 2005.
The Complainant submitted that the Respondent had been persuaded or had already decided that the future role of the second Deputy Principal would be that of an 'Administration Head'as outlined in the “untitled document” which was later entitled (after the competition had been completed) “Roles of Principal and Deputy Principals”. The earlier document did not comprise part of the application process but was supplied to all candidates prior to the interview.
The Complainant submitted that as the roles and duties of the vacant position matched the skill set of the successful candidate, this demonstrates evidence of an arrangement by the Respondent in contravention of Section 8 (5) which states:
5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.
- •Preparation of the Interview Board
- "Experience at middle/senior management level in PLC Further Education is desirable. The successful candidate will have a vision for the development of PLC / Further Education and Adult Education services".
The Complainant contended that the marking sheet did not break down the main headingsinto sub-headings and applyaweighting to each sub-heading.No marks were allocated for the presentation made by each candidate who dealt with"YourVisionfor theRole of2ndDeputyPrincipal ofSeniorCollegeDun Laoghaireand the skills,talentsand experience youwouldbring to thepost ifappointed”.
Among the difficulties the Complainant had with the marking sheet were the number of marks awarded for experienceand she had a difficulty with the fact that these marks were shared with qualifications–Qualifications/Experience (15 marks).
The Complainant also had difficulty with the composition of the Interview Board.
- •The Interview Itself
The Complainant contended that she had done an excellent interview and achieved an overall score of 71%, however, she suggested that she was not interviewed on her ability to take on the role of Deputy Principal but rather her interview was a test on her knowledge of FETAC, NQF and Quality Assurance and she was not questioned on management/leadership skills or on her general suitability. The Complainant disputed the marks awarded to her under each of the headings scored. She claimed that she was significantly more experienced than the appointee and that she met the criteria for promotion to a greater degree.
She stated that there were no notes retained of the interview process and that the successful candidate was appointed immediately after the interview with a replacement for the resulting vacancy being appointed within three days of the interview.
In support of her contention that there was direct evidence of discrimination against her due to her family status the Complainant citedCo Louth VEC and Don Johnson,Labour Court Determination No: EDA0712where the Court stated:
- "The mere fact that a younger employee and an employee of a different gender was promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred. It would be necessary to show that the Complainant was better qualified or met the criteria for promotion to a greater degree that the younger/female successful candidates.
In that regard it is normal for the employer to determine the qualification or other criteria for promotions. The Court could only interveneif the qualifications or criteria selected were such as to be either directly or indirectly discriminatory."
- •No Notes Retained of the Interview Process
The Complainant stated that no notes were kept of the interview process, as acknowledged by the Respondent in their reply to her Solicitor's letter. The Complainant referred to Department of Education and SkillsCircular Letter43/00 whichrequires either the CEO or a Board member to be assigned responsibility for keeping records.
- •Post-Interview, the Immediate Appointment
The Complainant submitted that the interview process was an “exercise in motion” as everything was ready to roll out. Ms X took up the position as Deputy Principal(Administrative Head) immediately following the announcement of the results of the interviews on Wednesday,11th October 2006. There was no hand-over period for a replacement Teacher nor for someone to be trained in the duties she was to vacate. In fact a replacement Teacher was immediately in place to take up Ms X's teaching hours. Ms X did not vacate duties but carried on with the same duties as listed in the “untitled document”distributed in advance of the interviews to the Interview Board.The only change in Ms X's position was a change of title from Assistant Principal or, more precisely, 'Manager of the Blackrock Campus' to Deputy Principal (Administrative Head).
Summary of the Respondent’s Position
Mr Peter Flood, IBEC, on behalf of the Respondent, denied that it had discriminated against the Complainant. He stated that the Respondent was an equal opportunities employer committed to equality of opportunity in all its employment practices, policies and procedures. All employees are selected, promoted and treated on the basis of their abilities, merits and suitability for the position advertised. Mr Flood stated that all the Respondent’s constituent Colleges provide in-service training and the staff are encouraged to upskill at every opportunity.
It is one of the largest Further Education Colleges in the country with over 1,000 full-time and up to 500 part-time students and a staff of over 100, both academic and support.
Mr Flood stated that the Respondent is a family-friendly employer which encourages work/life balance initiatives such as job-sharing and career breaks. He said that staff are always facilitated where possible in regard to their timetables and family-related leave such as illness of a child or parent/teacher meetings. He supplied details of the number of job-sharing arrangements and career breaks sanctioned for Teachers in the period 2005 to 2012 (67 job-sharing arrangements and 25 career breaks) and he said that these were mostly for family-related purposes.
Mr Flood referred to the Complainant’s complaint to the Equality Tribunal where she alleged the following:
- "I submit that this discrimination evidentially started in September 2004 when the successful candidate was secretly profiled to be the next new Deputy Principal"
However, he said that in her submission to the Equality Officer for the hearing of her complaint, the Complainant stated that the alleged discriminatory practices commenced in September 2000.
He submitted that allegations of discrimination prior to 8thSeptember 2006 were denied and were out of time under the Acts as no complaint was made until 7thMarch 2007 and no application for an extension of time was made by the Complainant. Mr Flood said that allegations of discrimination on the ground of family status only emerged sometime after her failure to obtain the post of Deputy Principal in 2006.
Mr Flood referred to a letter dated 12thOctober 2006 sent by the Complainant and two other unsuccessful candidates after the October 2006 competition to the Respondent’s Chief Executive Officer concerning their dissatisfaction with the outcome of the process. Mr Flood referred to the fact that no reference was made to discrimination of any kind in the letter. He said that this letter was followed up with a very detailed letter dated 28th
November 2006 from a Solicitor on behalf of the same three complainants, including the Complainant in this case, which again made no reference to discrimination in any form.
Response to the Claim re: Conditions of Employment
Mr Flood stated that both the successful applicant for the October 2006, Ms X, and the Complainant held Assistant Principal posts. All Assistant Principals are assigned duties by the Principal and all have the same conditions of service, status and remuneration. Mr Flood said that the duties of Assistant Principals cover a wide range of areas necessary for the management of the College, are of a similar level of responsibility and may be changed from time to time in line with the needs of the College.
Under Department of Education and Skills’ Regulations all Assistant Principal post-holders are entitled to a reduction of four hours in their class contact hours from twenty-two to eighteen hours per week. Mr Flood said that it is common practice in the Further Education Sector nationally to reduce class contact hours below eighteen in order to facilitate a wide range of administrative and other duties not required at second level. All Department Heads, including the Complainant, were allocated management and administrative duties in lieu of class contact hours. He said that the allocation of non-class contact hours varied depending on the range of duties involved and was in no respect related to family status.
Response to the Claim re: Training
Mr Flood denied the Complainant’s allegation that Ms X was treated more favourably than others due to her family status. He stated that the Complainant’s allegation that Ms X was sent on a number of seminars on educational matters such as Quality Assurance (QA) and National Qualifications Framework (NQF) was factually incorrect.
Mr Flood stated that all staff members, including the Complainant,were given every encouragement and facilitation to engage in Continuous Professional Development. He said that the College had a policy over many years whereby all staff were continuously notified of training opportunities and encouraged to participate for the benefit of their professional development. The Complainant had been facilitated with in-service training on a number of occasions (details were supplied) and she was also granted funding to undertake an MSc in Computer Applications in Education which she completed in 1998.
Mr Flood disputed the Complainant’s contention that Ms X had received special training not provided to other Assistant Principals. He said that she attended a presentation by a sales representative of a time-tabling software package which as it transpired was never purchased by the College.
Response to Claim re: Access to Promotion
Mr Flood disputed the Complainant’s contention that the Respondent engaged in "persistent discriminatory practices to access to promotion" not just in relation to the competition for the Second Deputy Principal in 2006 but since 2000. He said that the Complainant held and still holds the same level of post as she held in 2000, i.e. a permanent whole-time Teaching post with an Assistant Principal post of responsibility as Department Head and she retains the same conditions of service, level of responsibility, remuneration and status. In support of his contention Mr Flood pointed to the fact that the person appointed to the position asDeputy Principal in July 2004 was a woman with two young children. He mentioned that a second claim of discrimination on the gender ground taken by a different unsuccessful candidate was unsuccessful at the Equality Tribunal and was not the subject of an appeal.
With regard to the Complainant’s allegation that in May 2001 the management of the Business Studies Department was "removed" from her due to her family status, Mr Flood denied this allegation and stated that duties assigned to Assistant Principals change from time to time in line with the needs of a College, particularly in the evolving Further Education Sector. He said that such changes in duties are commonplace and it was normal practice for the Principal to review and reallocate such duties as student numbers increase and decrease in different areas and as staff/College needs change. He said that the Complainant's status did not change following the reallocation of duties and she was, and still is, a Department Head with the same status, remuneration, level of responsibility and workload as all other Department Heads. Mr Flood said that no issue (of discrimination or otherwise) was ever raised at the time.
Mr Flood stated that after her first maternity leave in 2000 the Complainant returned to work and was facilitated with special arrangements under which she worked four out of five days and commenced at 10am and finished at 5pm.
Mr Flood disputed the Complainant’s allegation thatin May 2002 the Respondent had failed to observe an established practice of filling a position of Assistant Principal/ Head of the IT Department in Blackrock with its most senior Assistant Principal. He stated that this was not a “promotional opportunity” or a “promotional transfer". He said that it was an Assistant Principal post with the same conditions of service, status and remuneration as all other Assistant Principal posts (including the one held by the Complainant at the time) and therefore did not need to be notified to the Complainant nor to any other Assistant Principal-holders. In any event it had been filled by three other Teachers with Assistant Principal posts before Ms X. He said that the post of Department Head in Blackrock changed in September 2000, in September 2001 and again in September 2002 and on no occasion was it notified to the other Assistant Principals.
Mr Flood stated that at no time did the Complainant express an interest in a change of Assistant Principal duties or a move to Blackrock nor did she raise the issue of seniority in 2001 or 2002 when both Assistant Principals who had less service than her were asked to become Department Head in Blackrock.
With regard to the allegations made concerning the filling of the second Deputy Principal Post in October 2006, Mr Flood stated that the Department of Education and Science published a report in 2003 called “the McIver Report” which set out a model of organisational structure for large PLC/FE Colleges and this resulted in the College acquiring a second Deputy Principal: one an Academic Head and the other an Administrative Head. Prior to the filling of the second Deputy Principal post, the Principal of the College produced the “untitled document" referred to by the Complainant which Mr Flood stated was a working draft based on the organisational model set out in the McIver Report for discussion and amendment following the appointment of the new Deputy Principal.
Mr Flood said that the Respondent categorically rejected the Complainant's allegation of interference with the Interview Board by the then Principal, Mr O’Callaghan. He said that the "untitled document" was not presented to the Interview Board and had no bearing on the interview process. In any event the Interview Board all had extensive professional backgrounds in education and in the FE Sector in particular and would all have been very familiar with the contents of the McIver Report.
Mr Flood stated that the competition process for the Deputy Principal post in this case was conducted in the normal way and in accordance with best practice set out by the Department of Education and Science. He said that six people were interviewed for the post - four females (all internal applicants) and two males (one internal and one external applicant). The Complainant was placed fifth of the six applicants.
Mr Flood stated that members of the Selection/Interview Board were not aware of the family status of any of the applicants, including the Complainant and the successful applicant, nor was any reference whatsoever made to family status.
Mr Flood said that all applicants for the position were very highly qualified,had over10 years’ teaching experience,held AP positions and had an extensive range of experience. He said thatboth the Complainant and the successful candidate each had over 10 years’ teaching experience and had a similar range of teaching and non-teaching experience.
He disputed the Complainant’s contention that the successful candidate was less qualified but that she has superior academic qualifications. Hence, the marginally higherscore for the successful applicant isjustified. He said that the successful candidate has a first class honours BBS primary degree, a first class honours Masters in Education (a core part of which was Leadership and Management) and a first class honours Graduate Diploma in Education and a Certificate in Delivering Learning using a Virtual Learning Environment. Her H Dip in Educational Studies was obtained as part of her Masters in Education. The Complainant has a second class honours B Comm primary degree, a Graduate Diploma in Business Education (Pass), a Diploma in Information Systems (Distinction) and a first class honours MSc in Computer Applications inEducation. Her Certificate and Diploma in Business Studies were obtained as part of her progression to degree level.
Burden of Proof
Mr Flood contended that the Complainant had not established any evidence to prove that she was discriminated against on the ground of family status in relation to promotion, conditions of employment and training. He cited Section 85A (1) of the Acts which deals with the burden of proof and states as follows:
"Where in any proceedings facts are established by or on behalf ofa
Complainant from which it may be presumed that therehasbeen
discrimination in relation to him or her, it is for the Respondent toprove the contrary".
Mr Flood cited the case ofMitchell v Southern Health Board(2001 ELR 201) in which the Court stated that the Complainant must first prove the primary facts upon which they rely in asserting discrimination. If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination,the burden of proving the absence of discrimination shifts to the Respondent. He also citedFlexo Computer Company v KevinCoulterDetermination No13/03where the Labour Courtstated that there are in fact two limbs in shifting the burden of proof to the employer:
- "The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board. This places the evidentialburden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts areofsufficient significance to raise an inferenceofdiscrimination. If these two limbsofthe test are satisfied the onus shifts to the respondent to prove that the principleofequal treatment was not infringed."
The Evidence
Evidence was given on behalf of the Respondent by the members of the Interview Board, including the then Principal of the College now retired and by the then Chief Executive of the VEC now retired. Evidence was given by Mr Gerry Craughwell, an Assistant Principal of the College and Chairman of the Teachers’ Trade Union (the TUI) within the College. It was accepted by all sides that Ms H, the person appointed to the Deputy Principal position in 2004, had family status at the time and consequently it was accepted that there was no need to take evidence from Ms H on this point.
Ms Mary Lonergan’s Evidence, Member of the Interview Board
Ms Lonegan was an external appointment to the Interview Board and she said that she had previously sat on other similar interviews.
Ms Lonergan told the Court that she had no knowledge of the family status of any of the candidates and was not aware of an “untitled document” either prior to or on the day of the interview.
Ms Lonergan recalled Councillor Marren’s questioning of the Complainant in relation to the question concerning her choice of Deputy Principal role based on the McIver Report and could not recollect any difficulty with his questioning. She said that there was no interference by anyone with the Interview Board and no reference to family status was made at any point.
Councillor Donal Marren’s Evidence, Chairman of the Interview Board
Councillor Donal Marren, Chairman of Dun Laoghaire VEC for 5 years, told the Court that, while he knew most of the candidates before the interview process in October 2006, he did not know their family status. He said it was his duty as Chairman of the Interview Board to ensure that the Respondent’s Equal Opportunity Policy was adhered to and he said that he never had to step in to ensure that the policy was applied. In relation to the question concerning the choice of Deputy Principal role he said that he asked this question of more than one, if not all, of the candidates and there was no implication/relevance to family status in the question.
He said that in the course of each interview the Board referred back to the candidates’ presentation and application form if and where relevant.
Mr Gerard Craughwell’s Evidence:
Mr Gerard Craughwell gave evidence to the Court on behalf of the Claimant concerning the alleged comment made by the then Principal, Mr O’Callaghan, at the end of 2004 concerning married women with children. Mr Craughwell said that he met the Principal coming out of his office and he made an “off-the-cuff” comment that he [the Principal] would prefer if married women would pack up their job and stay at home and mind their children like his wife had done. This remark was not made at a meeting but outside his office.
Mr Craughwell was asked if there was an ethos in the College of discrimination against employees with family responsibilities and he denied that such an ethos existed and said that he had no fault with the Respondent in this regard either. However, he did recall one incident back in 1999 when he was disappointed with the lack of response by the College when his own daughter was having a serious operation. He said that no one told him to go home on the day.
Mr Craughwell was also a candidate in the October 2006 competition and he told the Court that his family status had no bearing whatsoever on the outcome of the competition. However, he had taken a claim of discrimination on the gender ground in relation to the competition which had not been successful.
Mr Barry O’Callaghan: Retired Principal of the College
Mr Barry O’Callaghan denied making the comment referred to above and said that he had no recollection of it. He said that he did not hold the view that married women with children should stay at home. He said that on the occasion of the birth of a child to a staff member it is a time of celebration in the College and he contacted every staff member on such births. Furthermore, he said that he instigated a Christmas party with Santa for the staff’s children. He said that he was a father himself and he denied discriminating on family grounds. He said that the College was a family-friendly place to work and many staff had availed of career breaks and job-sharing arrangements to facilitate their family responsibilities. He said that all such requests were always allowed and there had been 13 requests for job-sharing in the academic year 2010-2011. He said that all requests for parental leave were accommodated with one exception where the College offered an alternative arrangement.
Mr O’Callaghan said that the Complainant was facilitated in the period from 13thOctober 2007 to 21stMay 2009 on 29 occasions with arrangements to look after a sick child, parent/teacher meetings, etc. He said that she was the most facilitated staff member for family reasons and she was never refused.
In relation to the October 2006 competition for a second Deputy Principal he said that he was not involved in the interview process. However, some of the candidates came to him beforehand as Principal of the College to discuss the process and he gave them the “untitled document” which he said outlined the sort of module he was interested in once the role was filled. When he mentioned to the Respondent’s CEO that he had given this document to some of the candidates the CEO instructed him to make sure all the candidates received a copy and explain to them that it would not form any part of the selection process.
Mr O’Callaghan stated that the reason why there was a quick replacement of Ms X following the competition in October 2006 was that he had a panel available to select from and consequently there was no delay.
Mr John Ryan retired CEO Dun Laoghaire VEC
Mr John Ryan, CEO of the Respondent from 2001 to 2006, said that he had no involvement with the issues raised by the Complainant. However, he was on the Interview Board in October 2006 and said that there was nothing untoward in the interview/selection process, family status had no role to play and no bearing whatsoever and it was never mentioned.
Mr Ryan referred to the “untitled document” and said that the McIver Report had recommended a management structure. Whereas the “untitled document” drawn up by the Principal was suggesting that the two Deputy Principal roles would be broken down into Academic and Administrative. Mr Ryan said that it was his view that the roles could be divided up after the interview. The discharge of duties could be Academic or Administrative or a combination of the two.
Mr Ryan recalled that Mr O’Callaghan had showed the “untitled document” to him at a meeting held on the Friday before the interviews and Mr O’Callaghan had explained that it had been given to some of the candidates. Mr Ryan told the Court that he made it clear to Mr O’Callaghan that the document must have no bearing on the interview, as it was an interview for a generic position of Deputy Principal, and he instructed Mr O’Callaghan to ensure that all candidates received a copy and were to be clearly informed that it would have no bearing on the interview. Mr Ryan said that at the interview all candidates were aware that the job was for an unspecified position.
With reference to the question the Complainant had a difficulty with asked by Councillor Marren, Mr Ryan said that a number of candidates made reference to it themselves in their presentations making the distinction between the two possible roles. In any event, he said the question had no bearing on family status.
Mr Ryan said that marks were awarded for all candidates at the end of the process and signed off by each member of the Board. Individual Board members’ notes were gathered up and later shredded but that situation has since changed and everything is held on record now.
Mr Ryan said that no complaints regarding family status had been made by the Complainant prior to the competition of October 2006 and no such complaints were ever brought by any other employees at any time.
Findings of the Court
The Complainant claimed to have been discriminated against on the ground of her family status contrary to Section 8 of the Acts. She claimed that the Respondent had engaged in persistent discriminatory practices against her on the family status ground from May 2001 until October 2006.
The first issue the Court must examine is whether or not the Complainant can raise issues which occurred more than six months before the within claim was submitted to the Equality Tribunal. No application for an extension of time was made.
Section 77(5) of the Acts provides: -
- (5) Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
Section 85A of the Acts provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit.
InArturas Valpeters v Melbury Development LimitedEDA0917 this Court held as follows in relation to the application of Section 85A:
- "Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
InMadarassy v Nomura International plc,[2007] IRLR 246 the Court of Appeal for England and Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof. In a judgment concurred with by Laws and Maurice Kay LJJ., Mummery LJ held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation be unlawful discrimination. If the Tribunal makes that finding then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination.
The Court has consistently held that 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 Complainant was discriminated against on any of the grounds outlined in the Acts.
It is not disputed that the Complainant made no complaints of discrimination at any time prior to March 2007.
The Court notes that another unsuccessful candidate for the October 2006 competition had taken a claim of discrimination on the gender ground which was not upheld by the Equality Officer and was not the subject of an appeal. That same candidate gave evidence to the Court and confirmed that his family status had no bearing whatsoever on the outcome of the competition.
Having considered the extensive submissions made and the evidence supplied the Court is not satisfied that facts have been established of sufficient significance to raise an inference of discrimination in the six-month period prior to the date of claim. The Complainant submitted that the interview process was an “exercise in motion”. Taking the Complainant’s case at its height, even if it were to be accepted that the successful candidate was treated more favourably than others (and the Court makes no such finding), there is no evidence to suggest that any such alleged favouritism was related to her family status or any other discriminatory ground.
The Court is satisfied that the “untitled document” does not in any way show an intention to discriminate on any of the grounds. Furthermore, the Court notes that no mention of discrimination was made in the Complainant’s [and others’] letter dated 12thOctober 2006 immediately following the interviews nor was there any mention of discrimination in the Solicitor’s letter dated 28thNovember 2006.
The Court is satisfied from the facts supplied that the Complainant has not demonstrated that she is better qualified or has met the criteria for promotion to a greater degree than the successful candidate and hence the Court cannot find facts from which it could be possible to raise a presumption that the selection process of October 2006 was tainted by discrimination.
The Court notes that on the last occasion when a Deputy Principal was appointed by the College, in 2004, the successful candidate was a woman with family status.
Having regard to all of the considerations set out above the Court cannot identify any facts from which it can be inferred that the Complainant was subjected to unlawful discrimination in the competition for a Deputy Principal position in October 2006 and consequently it is not necessary to consider events prior to that date.
Determination
The Court finds that family status was not a factor in the selection process for the competition for a Deputy Principal position in October 2006 and accordingly finds that the Respondent did not discriminate against the Complainant on the family status ground pursuant to Sections 6(2)(e) of the Acts and contrary to Section 8 of the Acts.
Accordingly, the Court determines that the Equality Officer’s Decision is upheld. The Complainant’s appeal cannot succeed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st July 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.