Employment Equality Acts
Decision DEC-E2012-196
PARTIES
Máire Ní Iarnáin
(Represented by the INTO)
- V -
Board of Management of Scoil Mobhí
(Represented by Dr Brian Foley, B.L.
instructed by Mason, Hayes & Curran, Solicitors)
&
Department of Education and Science (Skills)
File references: EE/2009/758 & EE/2009/777
Date of issue: 21 December 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Age - Prima facie case - Correct Respondent
1. DISPUTE
1.1 This dispute concerns a claim by Ms Ní Iarnáin Sweeny that she was subjected to discriminatory treatment by the respondent on the grounds of age in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred complaints of discrimination to the Director of the Equality Tribunal on 13 & 22 October 2009 under the Acts. On 1 October 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 12 October 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that she is a qualified and very experienced primary school teacher who was interviewed for the position of Deputy Principal on 24 October 2008 and again on 27 April 2009. She was not appointed to the post and understands that the appointee is a person with substantially less experience and that there is a large age difference between herself and the appointee.
2.2 The complainant submitted that her contention that discrimination occurred in the selection process is based on five factors (i) the complainant has 33 years experience teaching compared with the appointee's 13 years; (ii) the complainant was removed from her position as acting Deputy Principal after the notice of the other candidate's appointment and well before the expiry of the time limit for appeal of the selection board's decision; (iii) although the complainant had secured a place on the 'Tánaiste' Leadership Development for Schools course, the Principal would not sanction her taking up this place until the Deputy Principal post was filled; (iv) the specific questions and questioning of the complainant relating to her experience was carried out in a manner which would not have been possible in respect of the other candidate; (v) no interview notes were kept for the second round of interviews combined with the weighting of the marks for additional qualifications that advantaged the other candidate.
2.3 The complainant submitted that in all the circumstances, including the substantial age difference and the fact that the complainant had acted in the post of Deputy Principal on a number of occasions, it can only be concluded that she has been discriminated on the basis of her age
2.4 The complainant submitted that she is seeking compensation for the great distress caused to her, particularly in light of her long and excellent service to the school.
2.5 In relation to the second-named respondent the complainant believes that the it played a role in the appointment process in that the recruitment procedures are set out in a Circular notice issued by that respondent.
3. SUMMARY OF THE 1st NAMED RESPONDENT'S SUBMISSION
3.1 The respondent rejected the complainant's assertions that it discrimination against her in their entirety.
3.2 The respondent submitted that the appointment of Deputy Principals in primary schools is governed by a Circular communication issued by the 2nd named respondent and that the selection of the successful candidate is based on three criteria at interview (i) willingness to participate in the school's middle management structure; (ii) experience gained through length of service in the school; and (iii) capability to perform the duties attached to the post.
3.3 The respondent submitted that experience and length of service was only one of three criteria the interview panel had to consider and that in any event, the complainant was awarded full marks under this heading.
3.4 The respondent submitted that although the complainant acted in the roles of principal and deputy principal on a number of occasions, acting positions does not create any entitlement to substantive positions.
3.5 The respondent submitted that the removal of the complainant's duties as Acting Deputy Principal was a breach of procedures, this is not disputed but was cured following the complainant's successful appeal and the recommendation of that board that a second interview be carried out.
3.6 The respondent submitted that it does not dispute that the Principal of the school did not sanction a place on the 'Tánaiste' course. It was further submitted that the Principal prudently told the complainant to refrain from taking up the place on a course that consisted of three residential training modules until such time as the position of Deputy Principal was filled.
3.7 The respondent submitted that the questions put to both applicants for the post were pertinent to the specificic roles and to the advertised post and were designed to give both canditates the opportunity to show what achievement they have made and were proud of.
3.8 The respondent submitted that at the appeal stage, the complainant complained that too many notes were taken by the interview panel and that notes were not take as the complainant objected to them.
4. SUMMARY OF THE 1st NAMED RESPONDENT'S SUBMISSION
4.1 The respondent submitted that it holds no correspondence in relation to the complainant's application for the Deputy Principal position.
4.2 The respondent submitted that the Board of Management of the school is primarily responsible for the recruitment, selection, appointment, discipline and dismissal of teachers and, in carrying out these functions, the Board does not act as agent of the Minister.
4.3 The respondent submitted that the Minister's role in relation to teachers is confined to paying teachers' salaries and superannuation benefits, determining the terms and conditions of employment and determining the required level of teacher qualifications.
4.4 The respondent submitted that the procedures set down in Circular 07/03 "Appointments to Posts of Responsibility" are drawn up in consultation with the education partners, school management authorities, teacher representatives and Department representatives.
4.5 The respondent's position is that the Minister is not a teacher's employer. Each teacher is employed under a contract of employment with the Board of Management and the Minister is not party to the contract.
4.6 The respondent submitted that Section 24(3) of the Education Act 1998 leaves no room for doubt that it is the Board of Management which has responsibility for appointing "teachers and other staff" of a school. The Minister's role in this regard is confined to agreeing procedures with the other partners in education regarding appointment and setting down, with the agreement of the Minister for Finance, the terms and conditions of employment.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
Preliminary Issue - correct respondent
5.1 As a preliminary issue I must consider whether or not the Department of Education and Science is a correct respondent in this complaint.
5.2 The 2nd named respondent points to section 24 of the Education Act, 1998 and has cited a number of decisions of this Tribunal (DEC-E2004-032 McGinn V Board of Management St. Anthony's Boys National School, Kilcoole, Co. Wicklow and Department of Education & Science; DEC-E2004-067 Delaney vs Board of Management, Drumshanbo Central National School and Department of Education and Science; DEC-E2003/028 Bleach -v- Our Lady Immaculate Senior School & The Department of Education and Science; DEC-E2005/015 Murray -v- Scoil Mhuire and The Department of Education and Science; DEC-E2007-008 Ms. Marie Casey vs Board of Management, Coachford National School, Co. Cork and The Department of Education and Science) and the Judgement of the High Court Tobin v Cashell & Others (1993 124 JR) in support of the argument that the Department of Education and Science is not the correct respondent in this complaint.
5.3 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 agreement of the Minister for Finance.
5.4 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.
5.5 However, 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 and other staff. In addition, it appears that the use of the language, i.e. shall, leaves no room for equivocation in this regard:
'A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.'
5.6 The complainant when asked for oral submissions at the hearing simply stated that they were not going to give any specifics, but simply wanted the tripartite relationship recognized.
5.7 In the cases cited by the respondent, the Tribunal has found that the respective Boards of Management are the correct respondent in those instances. As no evidence to the contrary has been put before me, I find that in the circumstances of this case, the Board of Management alone is the correct respondent and I will proceed to deal with this complaint on that basis. Therefore, in the instant case the complaint against the 2nd named respondent must fail.
Substantive issue
5.8 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
5.9 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
5.10 The complainant gave evidence that she had 33 years experience as a teacher and that she had filled in as acting Deputy Principal on a number of occasions. The successful candidate had only 13 years experience, had no experience acting as a Deputy Principal, and was considerably younger than the complainant. The complainant gave her evidence in a credible manner.
5.11 It is instructive to consider the Labour court's approach in the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) wherein the Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.12 On the day of the hearing, the Tribunal had the benefit of hearing testimony from five people who sat on one or other of the interview boards. Each of the witnesses gave their testimony independently of one another. In addition, the Tribunal received copies of the marking scheme and had an opportunity to examine each of the witnesses with reference to the marks awarded. Each witness presented as credible. The Tribunal also had access to the CVs for both candidates. From this testimony and documentation, it is possible to conclude the following:
- The marking scheme for the interview was drawn up in advance of the interviews
- Each Board member dealt with specific areas of experience/competence
- The complainant was awarded full marks for experience, i.e. one mark per year - 33 marks while the other candidate was awarded 13 marks
- The Board members were satisfied that the successful candidate performed better at interview
- The Board members each noted that the successful candidate gave fuller, more comprehensive answers to their questions
- The Board members noted that the successful candidate used the opportunities presented by each question to the best effect and focused on the vacancy to hand
- The Board members noted that the successful candidates additional qualification were more suited to the vacancy on offer
- Each Board member was satisfied that they had chosen the best person for the job
- Board members noted that where there are only two candidates, it was not necessary to take individual notes
- It was also noted that when there are only two candidates for any position it is invariably the case that one candidate will be better than another
- It was also noted that where there are only two candidates one will always be older than the other
5.13 In the instant case, the complainant has outlined a number of primary facts that may be indicative of discrimination which she is relying upon. In accordance with the Labour Court's approach in Dyflen above, when those primary facts are considered in the context of the evidence adduced by the respondent, I am not satisfied that the complainant has established facts from which discrimination may be inferred. Therefore the burden of proof does not shift to the respondent and this complaint fails
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has not been established and in the circumstances, this complaint fails.
Conor Stokes
Equality Officer
21 December 2012