DEC-E2012-123- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2012-123

PARTIES

Maria Fitzgibbon
(represented by INTO)

-V-

Board of Management, Our Lady of Good Counsel Girls' National School
(represented by Dr. Brian Foley B.L. instructed by Mason Hayes & Curran Solicitors)

File Reference: EE/2008/792
Date of Issue: 18th September 2012

Keywords
Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, 6(2)(b) - marital status ground, 6(2)(f) - age, Section 8(1)(d) - promotion, Section 85A - prima facie case.

1. Dispute

This dispute involves a claim by a complainant that she was discriminated against by the above named respondent on the marital status and age grounds, in terms of section 6(1) & 6(2)(b) and (f), contrary to section 8 of the Employment Equality Acts in relation to a competition for the post of Principal.

Background
The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 19th November 2008 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on the 30th June, 2011 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 23rd June 2009 and from the respondent on the 3rd November 2009. A hearing on the complaint was held on the 1st December 2011 and the 28th May 2012.

2 Summary of the Complainant's case

2.1 The complainant is claiming that she was discriminated against in relation to promotion. She applied for the post of principal in the respondent school and she was unsuccessful. There are three primary schools in one building in the complex, a junior school, a senior girls' school and a senior boys school, each with a separate board of management, but there are shared services between the schools such as secretarial and caretaker duties. The complainant submitted that she is a highly qualified and experienced primary school teacher and has worked in the junior school since 1995 where she holds a position of responsibility. She applied for the position of Principal in the senior girls' school and was interviewed for the position on the 24th April 2008. She said that she was not appointed to the post and she believes that the successful applicant is a person with substantially less experience and qualifications and there is a large age difference between her and the successful applicant and also she is of a different marital status. She said that she is in her fifties and the successful applicant is in her late twenties. She also submitted that her husband was the Principal of the boy's school and she believes that she was discriminated against by association on the marital status grounds. She submitted that her husband was involved in a dispute about financial matters and staffing issues with the management of the girls' school and this was held against her by the Chairperson of the BOM of that school.

2.2 It was submitted by the INTO, on behalf of the complainant, that she is a qualified primary school teacher. She qualified in 1975 as a secondary school teacher and taught for three years at secondary level. From 1979 to 1995 she taught in a Youth Encounter Project special school as a class teacher and she rose to the position of Deputy Principal. In 1995 she moved to her present position in Our Lady of Good Counsel Infant School where she taught 1st class from 1995 to 1996 and then she moved to teach a special education class and she was in that position at the date of the interview and she also holds the position of Vice Principal in a personal capacity. The complainant has the following qualifications: B.A., Tutor in Adult Literacy, Teacher Diploma in Special School, Post Graduate Diploma in Special Education, Post Graduate National Teacher Qualification, Calaíocht sa Gaeilge Department of Education NT qualification, and an M.A.Ed (Hons). In addition she attended numerous in-service courses and seminars.

2.3 The position of Principal became vacant in the girls school in December 2007 but the position was not advertised until April 2008 to take effect from the 1st September 2008 and the delay in advertising and filling the post was of concern to the complainant and the union. The process for the appointment of the Principal of a Primary school is set out in the Booklet Boards of Management of National Schools - Constitution of Boards and Rules of Procedures at Appendix D. These procedures provide that the following factors should be taken into account when in assessing applicants for a Principal post:
- Professional Qualifications
- Teaching Experience and reports on competence
- Other relevant experience
- References.
The criteria applied by the Interview Board were as follows:
- Contemporary issues in Education
- Curriculum issues
- Ethos and Vision
- Interpersonal / communications skill
- Leadership
The union submitted that it was of concern to the complainant from the outset that the criteria which the interview board used was not in line with those set out in Appendix D and the ones used for the interview did not give due recognition to the complainant's qualifications and experience. It was submitted that the criteria for the post was not identified by the interview board until they had viewed the applications.

2.4 The complainant was interviewed on the 24th May 2008. She said that she is a fully qualified teacher at both secondary and primary level. She taught for 3 years at secondary level and then she taught at an inner city special school for disadvantaged children and since she came to her current primary school she taught one mainstream class and for the remainder of the time she taught special needs children. At the time of the interview she had a total of 24 years as an accredited primary teacher. She said that she had posts of responsibility and was a vice principal and held that post in a personal capacity in her current school. As a result of holding these posts she has a lot of management and administrative experience and that she has all the training done for the new curriculum. She is also a coordinator for and runs workshops for children with dyslexia and she also trains primary teachers in relation to dyslexia. She said that she was concerned that issues relating to her experience were not explored at the interview and neither was the area of special education referred to in the criteria used or at the interview itself notwithstanding the fact that the school has an autistic unit. The complainant raised the matter at the end of the interview and referred to her experience in this area but she was of the view that it was dealt with in an offhand manner. The Chairperson of the board said that he believed that the unit was functioning well. The complainant submitted that she understood that the unit was experiencing some serious difficulties and she had expected that she would have been asked questions in relation to the role of the Principal in resolving them. She also felt that her vast experience and the leadership roles that she held were not of interest to the interview board. On the 28th of May the chairman of the BOM handed the complainant a letter which stated she was not successful at the interview. She said that she was aware that the successful applicant did not have the wealth of experience she had and neither did she have a post graduate teacher qualification or a masters in education. And neither did she have experience as a V.P. and she never held leadership roles like she had throughout her career. She accepted that the successful applicant held a B post of responsibility. She said that on the way home from the interview she formed the view that the interview board was not interested in her or what she had to offer in relation to the post of Principal.

2.5 The complainant raised the matter with her union. The complainant was concerned about the criteria used at the interview, the failure to take her experience and qualifications into account and other factors such as the support shown by the previous principal of the school during the interview process for the successful applicant. The INTO wrote to the patron of the school the Archbishop about the issues of concern and asked that the approval of the appointment be deferred pending the examination of the process. The union was informed by the Director of Education at the Archbishop's House that approval had already been granted on the 28th of May the date the complainant had been informed that she was unsuccessful. The complainant learned that the successful candidate was in her late twenties and taught in the respondent school. In light of information subsequently received from the Department of Education and Science that no form requesting sanction for the appointment had been received from the respondent, the union took the matter up again with the Archbishop's Education secretariat, but no response was received. The complainant also wrote to the chairman of the BOM on the 11th of June 2008 requesting her marks and all notes of the interview board. On the 16th of June she received the marking scheme and notes from the interview. The notes were only available from three of the five interviewers as the other two had not retained their notes. Following receipt of the interview notes the complainant decided to refer a complaint of discrimination to the Tribunal and she also sought information under section 76 of the Acts.

2.6 The complainant contends that she was discriminated in the selection process in the following way:
(i) the delay in holding the competition facilitated the successful appointee;
(ii) the utilisation by the interview board of criteria which was not specified in Appendix D of the rules and Constitution of BOM;
(iii) The omission by the interview board of the mandatory criteria related to qualifications and experience
(iv) The omission of any apparent marking or credit for experience and qualifications
(v) The failure to retain full records of interview
(vi) The complainant was of a different marital status than the successful candidate
(vii) There was a substantial age difference between the complainant and the successful applicant.
The complainant contends that she has discharged the burden of proof and in support of her contention that she was discriminated against on the age ground she referred to the following cases: Meehan v Leitrim County Council DEC-E2006-014, O'Conghaile v Mercy Mean Scoil Mhuire DEC-E2007-068, O'Neill v Board of Management St Gabriel's National School DEC-E2005/007 and the Labour Court decision in the case of South Eastern Health Board and Brigid Burke DET EDA041.

3. Respondents case

3.1 The respondent denies that the complainant was discriminated against on any of the grounds claimed. The post of Principal became vacant on the 6th of January 2008. It is common practice when a Principal resigns mid year to replace the outgoing Principal with an acting Principal on a temporary basis until the end of the relevant school year. In this case following consultation with the Department of Education and Science the Deputy Principal was appointed acting Principal until the 31st of August 2008. There was no ulterior motive in deferring the appointment of the Principal until the end of the school year and the respondent rejects the complainant's contention it was done for the purposes of benefitting the successful applicant for the post. The respondent school is a senior girls' school under the patronage of the Archbishop of Dublin. It has 179 pupils and teaches children from 2nd to 6th class. It also has two outreach classes which caters for children with disabilities under the guidance of an independent organisation which provides expertise and specialist services. The Board of Management which is familiar with Appendix D of the document Constitution of Boards and Rules of Procedure which provides that a selection board shall be composed of the chairperson of the BOM and at least two people independent of the Board and all members are appointed by the patron in consultation with the Chairperson. Following a meeting between the Chairperson and the Parish Priest, the representative of the patron, the selection board was agreed. It consisted of the Chair of the BOM, 2 former principals of national schools, a former principal of a secondary school and a human resource person from a semi state company. It was submitted that all of these people had a depth of interview experience. The post was advertised on the 17th of April 2008. It was submitted that the structure of the application form ensured that that the factors set out in Appendix D which are required to be taken into account in assessing applicants were covered. These factors are as follows: Professional qualifications, teaching experience and reports on competence, other relevant experience and references. The selection board met on the 13th of May 2008 to review the applications. There were three applications for the post. The selection board agreed the following interview criteria: Contemporary issues in education, Curriculum issues, Ethos and Vision, Interpersonal/Communication skills and Leadership. The respondent submitted that the selection board did give due consideration to the factors as set out in Appendix D and professional qualifications, teaching experience, and reports on competence and other relevant experience were considered by the selection board and questions in relation to them were posed to all the candidates and these factors were clearly relevant to the criteria selected by the interview board. The criteria established for the interview were attributes that the interview board saw as desirable for the post of Principal. On the 14th of May 2008 the Chairperson of the BOM wrote to the three applicants informing them of the interview and enclosing mission statement, agreed criteria and the composition of the interview board. All the applicants were interviewed on the 24th of May 2008.The Interview Board allocated all the candidates the same length of time for the interview and they were all asked the same questions. The questions gave the candidates ample opportunity to demonstrate their professional experience, qualifications and relevant experience and to show how these would contribute to their performance as a Principal of the school. The interviewers were unanimous in its selection of the successful candidate.

3.2 Mr. A, Chairman of the BOM, stated that he was involved in setting up the interview board and he chaired the interview board. He discussed the vacancy of Principal with the BOM and the patron's representative who was the local PP and he was given the task of organising the appointment. A large advertisement was placed in the papers in the hope of attracting a large number of applicants. Only 3 applications were received, two of the applicants were from the school, the successful applicant and the home school liaison coordinator, and the other applicant was the complainant who was a teacher in the junior school. The interview board was selected by Mr. A, and in consultation with the patron and the BOM. They met prior to the interview and having reviewed the applications decided the criteria. He said that the criteria that they set out reflected the factors set out in Appendix D. Three of the interviewers were delegated to check orally with the referees before the interviews and they reported back to the interview board prior to the interview. He said each candidate was allocated the same length of time for the interview and each interviewer asked questions on one aspect of the criteria and he asked questions on leadership. He said that all the candidates were qualified for the position as regards educational qualifications and experience. He said that he would have regarded the successful applicant's first class honours B.Ed from Trinity College an indication that she was highly qualified. In addition the successful applicant had taught all classes from 2nd to 6th class whereas the complainant experience was mainly in special needs and she had taught only one mainstream 1st class. He said that under the heading leadership he believed that the successful candidate performed better and the complainant's answers were not as clear. In relation to curriculum issues the successful candidate scored higher than the complainant because she was more au fait with all of the issues. During the interview the complainant spoke a lot about special needs and the autism unit. He said that there were 179 children in mainstream education and 10 to 12 children in the autism unit and the school needed a Principal for the whole school. In relation to the Ethos/Vision of the school he said that all the candidates supported the Catholic ethos but the successful candidate who was a B post holder had prepared children for the sacraments and was involved in bereavement counselling and a homework club and had taught children for the Trinity Access Programme which is a very important programme for the school. Mr. A denied that the complainant's age was a factor which was taken into consideration in the selection process.

3.3 Mr. B said that he was a member of the interview board and had plenty of experience of interviewing as he worked in HR in a semi state company where one of his responsibilities was recruitment. The interview panel met prior to the interviews and the marking scheme and the criteria was discussed in conjunction with Appendix D. He denied that the criteria selected by the interview board excluded professional qualifications and experience. He believed that the interview criteria selected gave the candidates an opportunity to demonstrate their suitability for the job of Principal. From his memory he believes that all the candidates acquitted themselves very well at the interview but the successful candidate gave a better overall impression and it was for this reason she was selected. He said that the decision on marking was made on the basis of performance at interview and there was ample opportunity for the candidates to put forward their experience in the questions asked under of each of the criteria. Mr. B said that he asked questions in relation to Interpersonal Skills and Communications. He said that the successful candidate performed better at the interview and demonstrated a greater "hunger" for the job. He said that a Principal of a school has to have good interpersonal and communication skills in that they have to deal with children, parents, teachers and the BOM and the successful applicant scored higher under this heading. He said that the marking awarded was solely based on performance at the interview and denied that age played any part in the selection criteria.

3.4 Sr. C, who was also on the interview board, said that she was the former school Principal and had sat on numerous interview boards and she covered the area of Ethos/Vision. She said that the successful candidate performed better at the interview than the complainant and she had more experience teaching children from 2nd to 6th class and the complainant had little knowledge of the curriculum for these classes and for these reasons the successful candidate scored higher under the criteria than the complainant at the interview.

3.5 The respondent's barrister submitted that the complainant had failed to establish a prima facie of discriminatory on either the age or marital status ground. The fact that, the complainant is of a different marital status or age to the successful candidate cannot, of itself, give rise to a presumption of discrimination on the part of the respondent. I was referred to the case of County Limerick VEC -v- John Cotter DET No. EDA0910 where the Labour Court stated:
"However it is settled law that a mere difference in status (in this case age) and a difference in treatment (in the present case the fact that the complainant was not appointed to the post at issue whereas a younger person was) is insufficient to shift the probative burden to the respondent. Other independent facts must be established from which an inference of discrimination can credibly be drawn."
It was submitted on behalf of the respondent that the complainant's claim that she was the most appropriately qualified or suitable for the post is not sufficient to ground a claim of discrimination and she has not established facts from which a presumption of discrimination arises.

4. Conclusions of the Equality Officer

4.1 The matter for consideration is whether the respondent directly discriminated against the complainant her on the age and marital status grounds in terms of sections 6(1) and 6(2)(f) and (b)of the Employment Equality Acts 1998 and 2011, in contravention of 8(1) of that Act. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent. It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
"(1) 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 her or her, it is for the
respondent to prove the contrary."

4.2 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:

".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on the gender and marital status grounds. If the complainant does not discharge the evidential burden, the claim cannot succeed.
Section 85A. of the Employment Equality Acts sets out the burden of proof as follows:
(1) 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 her or her, it is for the
respondent to prove the contrary.

4.3 In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say in that case:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

4.4 I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts provides:

6. -- (1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where --

(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ''discriminatory grounds'')

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:

(b) that they are of different marital status (in this Act referred
to as ''the marital status ground''),

(f) that they are of different ages, but subject to subsection (3)
(in this Act referred to as ''the age ground''),

4.5 In considering the discrimination claim, I will now examine the manner in which the selection processes in relation to the competition was conducted by the respondent in order to establish if there is any evidence to suggest that these processes were applied in a less favourable or discriminatory manner towards the complainant on the age and marital status grounds. The complainant has claimed as set out at paragraph 2.6 above, the matters which she believes constituted discriminatory treatment. The complainant submitted that the competition was delayed to facilitate the successful candidates so that she would have 5 years teaching experience to qualify her to apply for the post. The respondent submitted that where a Principal retires mid year it is common practice to wait until the end of the school year to appoint a new Principal. I note that during the course of the hearing that the complainant accepted that the successful applicant had 6 years teaching and was fully eligible to apply for the post at the time the previous Principal retired. I find that the complainant has not established any discriminatory treatment in relation to this aspect of her complaint.

4.6 In relation to the contention that the interview criteria was not in accordance with the Rules set out in Appendix D, the complainant submitted that it was a mandatory requirement that the factors set out at Appendix D 3(ii) are the criteria which has to be considered by the interview board and I was referred to the High Court Judgement Brown v Board of Management of Rathfarnham Parish National School & ors IEHC178. Appendix D states:
"The selection board shall meet as soon as practicable and shall, in the first instance, establish criteria for the assessment of the applications, having regard to the Rules for National Schools and the requirements of the particular post and determine those applicants to be called for interview.
The following factors shall be taken into account, having regard to the requirements of the particular post and the Rules for National Schools, though not exclusively nor necessarily in this order:
- professional qualifications;
- teaching experience and reports on competence;
- other relevant experience;
- references; in this regard applicants should be advised in good time whether or not additional documentary information is required. Before notifying the successful candidate the board shall check his/her references."
The respondent submitted that the interview panel was constituted in accordance with what is set out in Appendix D and the criteria selected for the interviews reflected the factors set out above. They further submitted that the complainant's contention that the interview board is not entitled to consider criteria other than the factor set out in Appendix D is not correct. In relation to the Brown case cited above, they submitted that one of the alleged breaches of procedures in that case related to the failure of the selection board to supply those called for interview with the criteria for the interview. They further submitted that Appendix D clearly distinguishes between factors and criteria and the criteria chosen by the selection board were not discriminatory and included the factors set out in Appendix D.

4.7 It is clear that the BOM established an interview board in accordance with the rules set out in Appendix D and furthermore they met to establish the criteria for assessing the candidates and informed all the applicants of those criteria. I am also of the view that the case herein can be distinguished from the Brown case cited above on the facts in that the Respondents in that case had not complied with a number of the Rules set out in Appendix D for example the candidates for the post were not supplied with the criteria for the post prior to the interview. In the High Court Judgement Quirke J stated: "The statutory requirement imposed by s. 23 of the Act (Education Act 1998) is that the Board shall apply agreed procedures to the appointment of Principal teachers. It is a mandatory requirement. Procedures have been duly agreed between interested parties pursuant to the provisions of the section." He went on to say "Non-compliance with the minute detail of the agreed procedures will not invariably invalidate affected decisions. The procedures may be described as largely directory in nature. However they may not be ignored. They must be applied by the Board in substance".

4.8 I am of the view that the Rules set out in Appendix D were applied in substance in the case herein. It is not the function of this Tribunal to make a finding in relation to whether the factors outlined in Appendix D as outlined above are mandatory and have to be specifically stated in the criteria set by the interview board and sent out to the candidates. It is clear from the High Court judgment that it is a mandatory requirement to establish criteria and to inform the applicants of it and this was complied with in this case. My function is to consider whether the criteria set for the interview was in any way discriminatory in relation to the complainant or the conduct of the process and I am satisfied that there is no evidence to support any such contention.

4.9 I note that the criteria were set by the interview board after reviewing the applications. The complainant's union submitted that it was unfair and not good practice as the interview board was aware of the strengths and weaknesses of each candidate before the decided on the criteria applicable for the post. This practice lacks transparency and allows the interview board to draw up criteria which reflects the merits of a particular candidate and in that regard I was referred to the Labour Court case of The Rotunda Hospital -and- Gleeson DET No. DEE003. I note in that case there were no criteria agreed by the interview board prior to the interviews. In this case the criteria was drawn up by the interview and sent to the applicants prior to the interview and while it is not good practice to draw up the criteria after having sight of the applications, I can find nothing in the criteria which could be construed as discriminatory against the complainant.

4.10 In relation to the claim that qualifications and experience were omitted from the criteria set for the interview and from the marking scheme of the interview board, the complainant claims this was a mandatory criteria and she believed that the interview board did not give her an opportunity to discuss them. The respondent's case is that these factors were implicit in the criteria used and that they were taken into account in assessing the applicants. I note that the interview board had a detailed application form from each of the candidates where the applicants had to set out their qualifications and teaching experience. I further note from the evidence of the two members of the interview board that qualifications did form part of their deliberations on the merits of the candidates. Mr. A and Sr. C both stated during their evidence that they believed that the successful candidate's B.Ed honours from Trinity College was a more relevant qualification for primary teaching than the complainant's post graduate qualifications in primary teaching. I note from Ms. C's notes of the meeting of the interview board, where the criteria was established, that qualifications and experience were factors which were raised. While I do not accept the contention that the successful applicant had more relevant qualifications as the complainant was a fully qualified primary and secondary teacher and had an honours M.A.Ed, whereas the successful applicant did not have any postgraduate qualifications, I am satisfied from this evidence that qualifications were factors in their deliberations, but I am also satisfied that while qualifications were discussed they were not the sole reason for appointing the successful applicant.

4.11 The evidence from the members of the interview board was that the successful applicant performed better and scored higher than the complainant under the criteria set. I am satisfied that teaching experience was taken into consideration during the selection process. The respondent's evidence was that the successful candidate had more relevant teaching experience for the post of Principal than the complainant. At the time of the interview the complainant had taught one mainstream first class in a primary school, for the majority of her primary teaching career she taught special needs children, whereas the successful applicant had 6 years experience teaching mainstream classes and taught all classes from 2nd to 6th. The respondent submitted that experience in teaching these classes was essential for the job of Principal. While I accept that the job of Principal in this school was an administrative one, it is not the task of this Tribunal to determine whether this teaching experience was a necessary requirement for the post so long as the requirement is not discriminatory one. I can find nothing in this requirement which could be construed as discriminatory.

4.12 It is the complainant's case that so long as the respondent had not followed procedures in Appendix D above in every respect that this raised a lack of transparency in the interview process and this was sufficient to raise an inference of discrimination and I was referred to the jurisprudence of the cases set out at end of paragraph 2.6 above. In relation to the O'Neill case and the O'Conghaile cases, these cases can be distinguished on the facts in that the respondent asked questions at the interview which were found to be discriminatory on the age ground. In this case the complainant has made no such complaint.

4.13 I note the selection for the post was based on performance at interview in accordance with the agreed criteria. Under the various headings the scores of the complainant and the successful candidate were as follows:

The complainant submitted that the scoring was not a fair reflection of the interview and she believed there interviewers were not interested in her or what she had to bring to the post. The respondent's case is that the successful applicant performed better at the interview than the complainant and neither age nor marital status was a factor in their decision. It was the unanimous view of the interview board that the person appointed performed better at the interview and had more relevant teaching experience than the complainant and therefore the most suitable person for the post. Only three of the five interviewers retained their notes of the interviews and I was only provided with the questions asked by Sr. C in relation to Ethos/Vision and her preparatory notes, the other interviewers did not retain their questions. I have examined the interview notes provided and while it is difficult to decipher them without the benefit of the questions asked, I am of the view from these notes that broadly the same questions were asked of each of the candidates and the questions were in accordance with the criteria sent out prior to the interview. I can find no inconsistencies in relation to the way the interviews were conducted or the questions asked of each of the candidates. In addition to performance at the interview, it is clear from the interview notes and the evidence given by members of the board at the hearing that in selecting the person for the post of Principal in a school which teaches classes from 2nd to 6th that teaching these mainstream classes was experience which was relevant and necessary for the post. As I have found above, it is not less favourable treatment of the complainant to require such experience. It is clear from the marks awarded that the complainant's performance at interview were not as good as the successful applicant. It is a matter for the interview board to award the marks which they deem appropriate in respect of an applicants performance at interview and it is also a matter for the interview board to award higher marks to the applicant they believe best meets the requirements for the position so long as the selection is not tainted by discrimination. I can find no evidence that the selection process was in any way unfair to the complainant or tainted by discrimination. In relation to the marks awarded to the complainant I was referred to the Labour Court decision in the case of South Eastern Health Board and Brigid Burke DET No. EDA041 where the LC held that the level of marks awarded to the complainant in that case were extremely low and taken together with other facts were sufficient evidence to raise an inference of discrimination. I note that the complainant did not score as high as the successful applicant but I do not accept that her marks were extremely low and in fact under the heading Ethos/Vision the complainant's overall score was higher. In relation to the individual interviewers there was a difference of 9 marks between the complainant and the successful applicant for the marks awarded by 2 of the interviewers and 11 for the 3 other interviewers and under some individual headings the complainant scored higher.

4.14 In considering this matter I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill EDA0817 where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". It is a principle that has consistently been followed by both Equality Officers of this Tribunal and the Labour Court. It is not the Equality Officer's role to examine whether the most meritorious candidate was successful in a selection process. Rather, the Equality Officer's role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the age ground. In the case of Galway City Partnership -v- Josephine O'Halloran EDA077 the Labour Court held that "On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. The Court has previously held that where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board ..... On the evidence before it the Court can find nothing to indicate any element of irregularity or unfairness in the selection process as it was applied to the complainant ".

4.15 Having regard to the evidence adduced, the complainant has not established that there was any "manifest irrationality" or unfairness in terms of the manner in which she was assessed by the interview board in comparison to the successful candidate. For all of the above reasons, I find that the complainant has failed to establish a prima facie case of discrimination on the age and marital status grounds in relation to the position of Principal in the respondent school.

5. Decision

5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:

the respondent did not discriminate against the complainant on the age and marital status grounds pursuant to section 6(2)(b) and (f) and in terms of section 8 of the Acts.

5.2 At paragraph 4.13 above, I found that there were deficiencies in the interview records retained by the respondent. I recommend that the respondent when conducting future interviews to instruct boards to retain questions and to take clear interview notes and retain same for a period of one year as set out in Appendix D of the document Boards of Management of National Schools - Constitution of Boards and Rules and Procedures.

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Marian Duffy
Equality Officer
18th September 2012