Decision No: DEC-E/2013/180
Parties
Skelly
And
St. Paul’s Secondary School
(Represented by Mr. Barra Faughnan BL
Instructed by Millett & Matthews - Solicitors)
File No: EE/2010/520
Date of issue: 16 December, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 74 – discriminatory treatment – conditions of employment – marital status - victimisation.
1. DISPUTE
This dispute involves a claim by Ms. Deborah Skelly (“the complainant”) that she was (i) discriminated against by St. Paul’s Secondary School (“the respondent”) on grounds of marital status, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, in respect of her conditions of employment and (ii) victimised by the respondent in terms of section 74(2) of the Employment Equality Acts, 1998-2008.
2. BACKGROUND
2.1 The complainant is unmarried and is employed as a teacher with the respondent for the last twenty-four years. She contends that she has been subjected to less favourable treatment by the respondent on grounds of marital status as regards her conditions of employment in that married colleagues were assigned higher duties by the Principal in circumstances not in accordance with the policy governing the operation of Posts of Responsibility within the school and had those duties reviewed when she was not afforded the same opportunity. The complainant further contends that she was victimised contrary to section 74(2) of the Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 12 July, 2010. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 10 August, 2012, the date on which the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 27 November, 2012 and 10 January, 2013. A number of issues required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded in late July, 2013. The general practice of the Tribunal is to anonymise the identities of witnesses involved in the complainant and whilst the parties are not in agreement on this matter, given the nature of certain aspects of the complaint, I am satisfied that the general practice of anonymity of witnesses should be applied in this case.
2.3 Following delegation of the complaint to me and on perusal of the extensive documentation filed by both parties, it appeared the complainant was asserting that (i) the last occurrence of discrimination was 25 March, 2010 with the alleged treatment stretching back to August, 2008 and (ii) the last occurrence of victimisation was 13 June, 2010 with the alleged treatment stretching back to March, 2009. In light of the Labour Court Determination in Hurley v Cork VEC[1] I decided, having given the parties the opportunity to comment, that my investigation would focus, in the first instance, on the alleged acts of discrimination and victimisation which occurred between 13 January, 2010 and 12 July, 2010 – the six months period preceding the date of referral of the complaint, as prescribed at section 77(5)(a) of the Acts. If I considered any of the alleged incidents within this period to amount to unlawful treatment of the complainant contrary to the Acts, I would reconvene the Hearing to hear evidence on the other (earlier) incidents complained of to determine if any of them were sufficiently connected to the incident(s) within the six month period so as to make them part of a continuous act of discrimination. However, should I find the alleged incidents within the six months preceding the referral of the complaint not to be well founded the earlier alleged incidents would be statute barred.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that the most recent alleged act of discrimination of her on grounds of marital status occurred on 25 March, 2010. She adds that on that day she knocked on the Principal’s Office door and asked to speak with her. In the course of the Hearing the complainant stated that she was unable to recall why she went to the Principal’s Office that morning. The complainant states that she had been performing duties appropriate to an “A post” within the school from September, 2009 without being paid the rate of remuneration commensurate with that post. She adds that she believed her actions were in breach of an ASTI Directive in operation at that time and she therefore sought to discuss this matter with the Principal. The complainant states that the Principal refused to discuss the matter with her, reacted in an angry and hostile manner toward her and advised her to write to the Board of Management, which she did later that day. She adds that in her view, the ASTI Directive in operation at the time did not preclude the Principal from discussing the matter with her as the outcome she was seeking was a reduction in the tasks she was performing pursuant to the “A post” she was covering and not being paid for.
3.2 In the course of the Hearing the complainant stated that she later relinquished some of the tasks she performed (following consultation with the ASTI) and reverted back to her Special Duties Post. The complainant added that these duties were not assigned to a colleague but were taken on by members of the Board of Management. The complainant further stated that another member of staff (Ms. A), who is married, had the duties attached to her Post of Responsibility reviewed by the Principal. She was unable to be explicit as to what changes occurred and when this happened, although she believed it to be sometime in early March, 2010. The complainant further stated that she observed Ms. A carrying out duties associated with the State Examinations in March, 2010, adding that as far as she knew there was no such role – these duties would have previously been carried out by the Deputy Principal. The complainant submits that this amount to less favourable treatment of her on grounds of marital status contrary to the Acts. In the course of the hearing the complainant confirmed that these were the only alleged incidents of discriminatory treatment which occurred in the six months immediately prior to 12 July, 2010.
3.3 The complainant states that following the meeting with the Principal on 25 March, 2010 she wrote to the Board of Management registering concerns she had about, inter alia, the allocation of duties within the school and requesting an array of documents pertaining to the process adopted by the respondent previously in that regard.The complainant adds that in this letter she informed the respondent as follows“It is unclear as to what additional roles/duties some members of staff are afforded and on what basis …. and such a practice is unfair and discriminatory. These issues have affected me adversely both directly and indirectly as a member of staff. … It is with regret that I find it necessary to request the information outlined following ongoing difficulties with the school principal in my efforts to ensure…. that my rights as an employee are respected at all time in accordance with the relevant statutory provisions …. ”. The complainant contends this letter expresses the view that she intends to take action to oppose what she believes to be discriminatory treatment of her and as such forms one aspect of the basis of her claim of victimisation in terms of section 74(2)(g) of the Acts. In the course of the Hearing the complainant rejected the respondent’s assertion that her letter of 25 March, 2010 was more focussed on grievances she had about management of the school by the Principal and the Board of Management.
3.4 The complainant further states that she repeated her position in more specific terms in her letter to the respondent dated 31 May, 2013 wherein she states that “I have been discriminated against pursuant to section 6(2(c) of the Employment Equality Act, 1998 as amended by section 4 of the Equality Act, 2004….with regard to being denied…the opportunity to a review and or change of duties.. pertaining to my post of responsibility as was afforded to others. Further I say that I have been treated less favourably than another had been, but for the fact that other (comparator) was married.” and goes on to say that “it is my intention to submit a completed claim ….to the Equality Tribunal.. She contends that this letter clearly indicates her intention to submit a complaint under employment equality legislation and as such forms a second basis of her claim of victimisation in terms of section 74(2)(g) of the Acts. In the course of the Hearing she accepted that this letter was the first occasion she mentioned her marital status as an issue for her grievance.
3.5 The complainant states that the most recent alleged occurrence of victimisation of her contrary to the Acts took place on 13 June, 2010. She further states that on that date she received a letter from the respondent enclosing a copy of her Personal File (via a request under data protection legislation). She adds that the bundle of documents she received included a letter from the Principal of the school (dated 2 April, 2010) to the Secretary of the Joint Management Board (JMB) wherein the Principal makes several untrue assertions about her (the complainant’s) behaviour over the previous couple of years and seeks advice from the JMB about how to address these matters. The complainant states that this was the first occasion she was aware of any potential difficulty with the Principal. She contends that the letter of 2 April, 2010 was prompted by her discussion with the Principal on 25 March, 2010, that its contents are untrue and are an attempt to frustrate her proceeding with her complaint and as such amount to adverse treatment of her. She submits therefore that it constitutes victimisation of her contrary to section 74(2)(g) of the Employment Equality Acts, 1998-2008.
3.6 The complainant states that she received a letter from the Chairperson of the respondent’s Board of Management (Sr. X) dated 11 June, 2010. She further states that this correspondence threatens her with disciplinary action on foot of the allegations detailed by the Principal in her letter of 2 April, 2010 to the JMB. The complainant adds this letter insists that any meeting between her and the Board of Management to resolve ongoing issues between them (which she had raised in her letters of 25 March, 2010 and 31 May, 2010) must also address the issues detailed in the Principal’s letter of 2 April, 2010 to the JMB. The complainant submits that the approach of the respondent in this regard, in addition to threatening disciplinary action (she asserts that the requirement contained in the Chairperson’s letter to furnish her (the complainant’s) response to the approach proposed by the respondent within twenty-one days) amounts to adverse treatment and consequently constitutes victimisation of her contrary to section 74(2)(g) of the Acts. In the course of the Hearing the complainant stated that she was not subjected to any disciplinary action on foot of the contents of the letter of 11 June, 2010, or otherwise.
3.7 The complainant states that she volunteered for a Committee to explore the issue of establishing a school website on 16 April, 2010. She adds that she did so by signing her name to a list which was affixed to the notice board in the Staffroom. The complainant states that after she expressed her interest the Chairperson of the Board of Management (Sr. X) also volunteered for the Committee. She states that it was unusual for the Chairperson of the Board of Management to sit on such a group and contends that the purpose of Sr. X volunteering for the Committee was to “keep an eye on her”. The complainant submits that this amounts to victimisation of her contrary to section 74(2)(g) of the Acts.
3.8 The complainant states that had stored some teaching materials in an office which belonged to Sr. Z, another member of the school community and had done so for a couple of years. She adds that on 26 March, 2010 Sr. Z asked that she (the complainant) remove the materials from the office, although another member of staff who had stored IT materials in the office was not requested to remove same. The complainant asserts that Sr. Z was prompted to make the request by the Principal following the discussion she (the Principal) and the complainant had the previous day and the fact that she (the complainant) had written to the Board of Management the same day detailing her concerns. The complainant submits that the behaviour of the Principal and Sr. Z constitutes victimisation of her contrary to section 74(2)(g) of the Acts.
3.9 The complainant states that she was certified as unfit for work by her General Practitioner from 12 April, 2010 – 16 April, 2010 inclusive. She adds that formed the opinion she was fit to resume on 16 April, 2010 and phoned the Principal’s Secretary on 15 April, 2010 to advise that she intended to resume the next day. The complainant states that an unnecessary discussion about a medical certificate ensued with the Secretary which was not standard practice. She states that on the few other occasions she was absent from work previously she had furnished her medical certificate personally to the Deputy Principal in the first instance and if she could not locate the Deputy Principal, to the Principal. The complainant states that on this occasion she was unable to locate the Deputy Principal when she reported for duty on 16 April, 2010 and made her way to the Principal’s Office to deliver the medical certificate to her. She states that the Principal’s door was ajar and there was someone with her. The complainant adds that she knocked on the door and informed the Principal that she was reporting back for duty. She adds that the Principal thanked her abruptly and closed the door in her face. The complainant submits that the treatment of her as set out above amounts to victimisation of her contrary to the Employment Equality Acts, 1998-2008.
3.10 The complainant states that she received a document entitled “Schedule of Posts 2008/2009 as part of the documentation furnished by the respondent as part of her request under data protection legislation. She further states that the information contained in this document in respect of her in terms of her responsibilities as an Assistant Principal, omitted her role as regards “School Development Planning” which had previously been included on a similar document which had been on the notice board in the Staffroom. The complainant is unable to say when this omission occurred or who altered the document but asserts that it was the Principal and that this action amounts to victimisation of her in terms of section 74(2) of the Acts.
3.11 The complainant had submitted that a number of other alleged incidents which were detailed at pages 32-38 of her submission received in the Tribunal on 12 July, 2010 amounted to victimisation of her contrary to the Acts. However, she withdrew all of these allegations at the Hearing on 10 January, 2013.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. The Principal (Ms. B) rejects the complainant’s version of events in terms of any discussion they had on 25 March, 2010 or the manner in which the complainant states she (Ms. B) behaved. The respondent (Ms. B) states that the complainant met with her by appointment that day and initially the complainant raised issues she had about the failure of a staff representative on the Board of Management to provide her (the complainant) with certain reports and other documents. She (Ms. B) adds that she informed the complainant there appeared to have been a misunderstanding about what she (the complainant) had requested and that all documents which she was entitled to her would be released to her. Ms. B further states that the complainant then raised the issue of duties connected with preparation of the school timetable and when she (Ms. B) informed the complainant that the person who had been engaged the previous year (who was also a single woman) was being engaged again to perform that function, the complainant became quite confrontational and abusive towards her. She adds that the complainant criticised the way she (Ms. B) managed the school, made derogatory remarks about the Deputy Principal and the Board of Management and accused the Board of targeting her.
4.2 The respondent (Ms. B) states that the meeting lasted about fifty minutes during which the complainant refused to sit down. Ms. B adds that during this time she asked the complainant to leave on at least three occasions and she failed to do so. She (Ms. B) adds that she eventually had enough of the complainant’s behaviour, which she describes as bullying, and she (Ms. B) told the complainant she was terminating the meeting. Ms. B adds that as the complainant was leaving she informed her she “Could look forward to three years of a legal battle ahead”. The respondent (Ms. B) states that given the complainant’s behaviour that day (along with previous encounters they had), she sought the advice of the Secretary of the JMB and it was in that regard she wrote to him on 2 April, 2010. She states that she received no response to her letter but both she and the Chairperson of the Board of Management met with him on 12 April, 2010, when they spoke mostly about issues concerning Posts of Responsibility. The respondent (Ms. B) adds that the issue of timetabling was huge for the complainant at that time. In the course of the Hearing Ms. B stated that she did not understand what the complainant was referring to by her comment as she left the office but she (Ms. B) was aware that there were a number of avenues of complaint available to the complainant. She rejects the complainant’s assertion that her issuing her letter of 2 April, 2010,or the contents of same, amounts to adverse treatment of her and therefore that it constitutes victimisation of her contrary to the Acts.
4.3 The respondent (Ms B) rejects the assertion that she refused to discuss the complainant’s Post of Responsibility duties with her. She adds however, that had the matter been raised, she would have been precluded from discussing same as the ASTI Directive in operation at that time instructed members not to engage in any such review. The respondent states that the complainant was the School ASTI Steward at that time and was well aware of this Directive. Ms. B confirms that she was aware of the Directive at this time and was fully compliant with it for fear of provoking industrial action and rejects the assertion she had discussed duties with the complainant’s colleagues around that time. The respondent (Ms. B) states that there was no Post of Responsibility for State Examinations - the duties had previously been done by the Deputy Principal. She adds that in March, 2010 the Deputy Principal was absent on sick leave and Ms. A offered her assistance with the task and she (Ms. B) gratefully accepted the offer. M. B adds that the tasks were time specific and ceased in early April. It is submitted that the actions of the respondent were unconnected with her marital status and cannot therefore constitute discriminatory treatment of her on grounds of marital status contrary to the Acts.
4.4 The respondent (Sr. X – who is Chairperson of the Board of Management) states that the respondent had been dealing with the request made by the complainant on 5 May, 201 under the data protection legislation. She adds that the legal advice it received stated that the complainant was entitled to receive all documentation which contained her name and it was in the context of collating all such documentation that the Principal’s letter of 2 April, 2010 came to the Board’s attention. Sr. X adds that the Board was quite shocked at the content of this letter and discussed same at the Board Meeting on 9 June, 2010. She further states that by that time the Board of Management had received the complainant’s letter of 31 May, 2010 wherein she raised various issues and complaints and had threatened legal action. Consequently, the Board considered it was best to deal with the totality of the issues between the complainant and the school and it was in that regard it proposed a meeting with her in its letter of 11 June, 2010. The respondent (Sr. X) rejects the complainant’s assertion that the contents of this letter threaten disciplinary action, although she accepts it makes reference that the behaviour as detailed in the letter of 2 April, 2010, if true, could warrant disciplinary action. The respondent states that there is a structured format for invoking any disciplinary action against a teacher and this is covered by the relevant Department of Education and Science (as it then was) Circular 60/2009. It adds that the complainant was well aware of this Circular and the letter of 11 June, 2010 could not be construed as invoking same. The respondent accepts that the letter seeks a response to the proposal contained therein within twenty-one days but submits that such a deadline is reasonable given the time of year involved. Moreover, it states that this deadline was extended until end August, 2010 (in its letter of 21 June, 2010 to the complainant). The respondent states that in any event, the complainant was not subjected to any disciplinary action on foot of its letter of 11 June, 2010. It is submitted on its behalf that in all of the circumstances its actions cannot amount to unlawful victimisation of the complainant contrary to the Acts.
4.5 The respondent accepts that it was decided to establish a Committee to oversee the creation of a school website in April, 2010 and in that regard a sheet was placed on the Staffroom Notice Board by Ms. B seeking volunteers for participation on same. The respondent accepts that the complainant volunteered for this Committee. Sr. X states that she was around the school regularly and had a personal interest in establishing a school website and consequently she volunteered for the Committee. Sr. X adds that she had attended meetings on other school issues on numerous previous occasions and believed that she was entitled to do so in her capacity as Chairperson of the Board. She adds that there had been no issue taken with her involvement on those occasions. Sr. X states that when she signed the sheet expressing an interesting in participating on the Committee she did not even notice that the complainant had also volunteered and rejects the assertion that she only volunteered to keep an eye on the complainant, either of her own volition or at the suggestion of Ms. B. In the course of the Hearing Ms. B stated that she never requested Sr. X to “keep an eye” on the complainant in respect of the Committee. The respondent states that the complainant attended the initial meeting in respect of the project and then withdrew of her own volition. It is submitted on behalf of the respondent that this cannot amount to victimisation
4.6 The respondent states that Sr. Z was a former member of staff but was in the school every day. Ms. B states that she was unaware of there being any issue around storage of items by the complainant in the office used by Sr. Z and can offer no explanation for any request by her to the complainant to remove items from the room in late March, 2010. Both Sr. X and Ms. B stated at the Hearing that neither of them spoke with Sr. Z about the complainant. It is submitted therefore that any request by Sr. Z to the complainant to remove items for the office in question does not constitute victimisation of the complainant contrary to the Acts.
4.7 The respondent accepts that the complainant was absent from work for a number of days in April, 2010 and that the complainant had a tense discussion with the Principal’s Secretary around that time. The respondent states that the complainant’s absence was certified and therefore it was able to retain the services of a Substitute Teacher to cover her absence. The respondent states that the complainant did not furnish a medical certificate to the respondent on her return to work and Ms. B did not pursue the matter for fear of exacerbating an already tense situation. The respondent therefore rejects the complainant’s assertion that Ms. B shut the door in her face when she (the complainant) attempted to hand her the medical certificate on her return to work.
4.8 The respondent accepts that there is a requirement for a review of Posts of Responsibility under the relevant Departmental Circulars. It further accepts that at the time in question the Schedule of Posts system was in disarray. The respondent also accepts that the document entitled “Schedule of Posts for 2008/2009” differs from the previous “Schedule of Posts for 2007/2008” in that the latter indicates the complainant has responsibility for “School Development Planning” whereas this is omitted in the former. The respondent notes that the Schedule of Posts 2007/2008 also indicates that responsibility for “School Development Planning” is assigned to another teacher as well as the complainant and suggests that the document is incorrect. Ms. B states that the document for 2008/2009 was the one retained in the School Office and was therefore released to the complainant as part of her data protection request. Ms. B adds that she had no reason to doubt that this document was other than correct and states that she did not alter the document personally or request any other person to do so. The respondent states that an up to date Schedule of Posts review was only completed in late 2010 after the ASTI Directive was lifted and the matter could be addressed. It submits that in all of the circumstances the omission of “School Development Planning” from the complainant in the 2008/2009 Schedule of Posts does not amount to victimisation of the complainant contrary to the Acts.
4.9 It is submitted on behalf of the respondent that the complainant’s issues are not ones connected to equality but rather are related to issues she has with the management of the school by the Principal and the Board of Management. It contends that the issue of timetabling is of significant concern to her and refers to her letter of 25 March, 2010 in particular in this regard. The respondent states that the task of timetabling is a “political” one in the school environment (as the timetabler has responsibility for deciding the times for allocation of classes to teachers throughout the year) and in order to been seen as neutral and unbiased Ms. B decided (as she was entitled) to retain the services (on a commercial basis) of a former staff member in 2008 and 2009 to perform this task and the complainant took serious umbrage at this. It is further submitted that other concerns about Posts of Responsibility (and the allocation of duties thereto) are also of significant interest to the complainant (her letter of 31May, 2010 refers) and that these matters are more connected with industrial relations within the school. It is further submitted on behalf of the respondent that the first occasion the complainant makes explicit reference to her rights under the Employment Equality Acts and that she believes the alleged treatment of her is related to same, is her letter of 31 May, 2010 and it is submitted that only alleged treatment of her after this date could amount to victimisation of her contrary to the Acts. It is accepted by the respondent that her letter of 25 March, 2010 contains the words “unfair” and “discriminatory” and that she has been “affected adversely, both directly and indirectly as a member of the teaching staff” but argues there is nothing in those words which suggest that the complainant is invoking her rights under the employment equality legislation, or that she intends to do so. It is submitted that in those circumstances the complainant has not carried out a “protected act” in terms of the test for victimisation set out by the Labour Court in Barrett v Minister for Defence[2] and elements of her complaint premised on this cannot therefore succeed.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of marital status, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts, in respect of her conditions of employment and (ii) victimised the complainant in terms of section 74(2) of the Employment Equality Acts, 1998-2008. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998-2008 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment on the ground specified. 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. If the complainantdoes not discharge the initial probative burden required her case cannot succeed.
5.3 The first issue I propose to address is the complainant’s assertion that she was treated less favourably in terms of her marital status in respect of her interaction with Ms. B on 25 March, 2010. The complainant contends that she sought to raise her Post of Responsibility with Ms. B in the course of this meeting. Ms. B rejects this assertion. From examination of the extensive documentation submitted by the parties in the course of this investigation it is clear to me that the complainant was dissatisfied with the manner in which the school was being managed, in particular the assignment of duties in terms of Posts of Responsibility amongst teaching staff and most particularly, the appointment (by Ms. B) of a former member of staff to complete tasks associated with “timetabling” on a commercial basis. Moreover, on a personal basis the complainant had been appointed (in an acting capacity) to the position of Assistant Principal and there were issues about that role and whether or not she was being appropriately remunerated for it. In my view these are issues more connected with the industrial relations environment in the school, although it was appropriate that the complainant had an interest in same on a personal level and also in her capacity as ASTI Steward in the school.
5.4 There is dispute between the parties as to whether or not Ms. B expressly refused to discuss the complainant’s duties with her. Where such a dispute exists it is a matter for the Equality Officer to decide, on balance of probabilities, which version of events s/he finds more credible. The complainant stated that at the meeting Ms. B advised her that she should raise any issues she had in writing to the Board of Management. The complainant did so by letter dated 25 March, 2010 and in this letter she seeks an explanation as to why Ms. B refused to review her duties. I am therefore satisfied, on balance, that the complainant sought to raise this matter and that she understood Ms. B actions to amount to a refusal to discus same. However, I am not satisfied that Ms. B refused to discuss this matter. It is common case that the meeting was lengthy and tense and it is highly likely that issues discussed just merged into each other during its course. Moreover, I am satisfied that had Ms. B refused to discuss same it would have been appropriate and prudent of her to do so in light of the ASTI Directive in force at that time which instructed members “not to engage with reviews of posts of responsibility or to change the duties of existing post-holders....”. It does not, in my view, permit a review of the post if it is to result in a reduction of tasks associated with a post (as argued by the complainant), it applies to all reviews. Clearly had Ms. B engaged with the complainant on this matter she ran the considerable risk of attracting industrial relations unrest in the school, particularly when the complainant held the role of ASTI Steward at the time. In light of my comments in this and the preceding two paragraphs I find that the complainant has failed to establish a prima facie case of discrimination as regards this element of her complaint and it cannot therefore succeed.
5.5 The complainant contends that another member of staff (Ms. A), who is married, had the duties attached to her Post of Responsibility reviewed by the Principal. She was unable to be explicit as to what changes occurred and when this happened, although she believed it to be early March, 2010 as she observed Ms. A carrying out duties associated with the State Examinations during that month. She adds that far as she knew there was no such role – these duties would have previously been carried out by the Deputy Principal – and submits that this amount to less favourable treatment of her on grounds of marital status contrary to the Acts. Ms. B accepts that that there was no Post of Responsibility for State Examinations - the duties had previously been done by the Deputy Principal. She adds that in March, 2010 the Deputy Principal was absent on sick leave and Ms. A offered her assistance with the task and (she) Ms. B gratefully accepted the offer. M. B adds that the tasks were time specific and cease in early. It is clear to me (from examination of the documentation submitted by her) that a source of some concern for the complainant was her belief she was performing duties for which she was not being appropriately remunerated. Against that backdrop it is difficult to see how the Principal accepting Ms. A’s offer to carry out some tasks associated with the State Examinations could amount to less favorable treatment of the complainant contrary to the Acts as it did not involve a review of Ms. A’s post of responsibility. Consequently, this element of the complainant’s claim fails.
5.6 I shall now examine the complaint’s allegations of victimisation. Section 74(2) of the Employment Equality Acts, 1998-2008 defines victimisation as follows:
“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –
(a) a complaint of discrimination made by an employee to the employer………….
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”.
In Tom Barrett v Department of Defence[3] the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have take action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.7 The complainant submits that her letters of (1) 25 March, 2010 and (ii) 31 May, 2010 each constitute a protected act in terms of the first component of the test set out by the Labour Court in Tom Barrett v Department of Defence[4]. The complainant further submits, as regards her letter of 25 March, 2010, that this letter expresses the view she intends to take action to oppose what she believes to be discriminatory treatment of her and as such forms one aspect of the basis of her claim of victimisation in terms of section 74(2)(g) of the Acts by virtue of the following“It is unclear as to what additional roles/duties some members of staff are afforded and on what basis …. and such a practice is unfair and discriminatory. These issues have affected me adversely both directly and indirectly as a member of staff. … It is with regret that I find it necessary to request the information outlined following ongoing difficulties with the school principal in my efforts to ensure…. that my rights as an employee are respected at all time in accordance with the relevant statutory provisions …. ”.
5.8 The respondent rejects the complainant’s assertion that her letter of 25 March, 2010 constitutes a protected act in terms of the Barrett case. It accepts that it contains the words “unfair” and “discriminatory” and that she has been “affected adversely, both directly and indirectly as a member of the teaching staff” but argues there is nothing in those words which suggest that the complainant is invoking her rights under the employment equality legislation, or that she intends to do soand argues that it was more about any grievance she had about management of the school by the Principal and the Board of Management. It is clear from the language of section 74(2) that the complainant (in the instant case) must have either made a complaint of discrimination to the respondent or have given notice of her intention to do so. Having carefully considered the contents of the complainant’s letter of 25 March, 2010 I am not satisfied that it amounts to either of the foregoing scenarios and agree with the respondent that it was more about a series of grievances she had about management of the school by the Principal and the Board of Management. The mere presence of the word “discrimination” in a four page letter setting out her grievances about a number of issues is insufficient to render the letter a protected act in terms of the first component of the test in Tom Barrett v Department of Defence[5]. However, should I be incorrect in this and in the interest of completeness, I will examine each of the alleged incidents of victimisation upon which the complainant relies on this letter to ground her complaint of victimisation. No such issue arises as regards her letter of 31 May, 2010 wherein she expressly states she considers herself to have been discriminated against contrary to the employment equality legislation. Consequently, any alleged incident of victimisation grounded on this letter is properly before the Tribunal for investigation.
5.9 I shall now look at the alleged incidents of victimisation based on the complainant’s letter of 25 March, 2010. The first such incident is the contents of the Principal letter of 2 April, 2010 to the Secretary of the Joint Management Board (JMB) wherein the complainant contends that the Principal makes several untrue assertions about her (the complainant’s) behaviour over the previous couple of years and is an attempt to frustrate her proceeding with her complaint to this Tribunal. The respondent (Ms. B) rejects this and states that it was an attempt by her to seek advice from an external source of support available to her in circumstances where, particularly after the heated meeting between them on 25 March, 2010, Ms. B had in effect reached the end of her tether with the complainant and considered her behaviour towards her bullying. I have examined the letter of 2 April, 2010 and it sets out, inter alia, a list of correspondence received by Ms. B from the complainant dating from October, 2008 (only one month after Ms. B had assumed the role of Principal) as well as details of a number of conversations she says that had. The letter goes on to say “All of the above is just to give you an indication of the volume of correspondence I have received over and above what would be usual or necessary..... I have supported her fully in all of her policy initiatives but I feel that Ms. Skelly has conducted an unprovoked campaign against me since I came to St. Pauls in 2008. I have found this extremely stressful. I would welcome you advice on the matter and especially in relation to how to respond to her recent letter.”. It is clear from this except that Ms. B’s was seeking assistance from the JMB, which is an advisory body available to school authorities, as to how to deal with what Ms. B believed was an unnecessary level of interaction and attempted involvement in the management of the school by the complainant, in circumstances where the relationship between them was undoubtedly strained. Having carefully considered the foregoing I am not satisfied that the complaint has established a prima facie case that the letter of 2 April, 2010 amounts to adverse treatment of her in terms of section 74(2) of the Acts and this element of her complaint fails.
5.10 The next alleged incident of victimisation relates to the events connected with the complainant volunteering for membership of a Committee to explore the issue of establishing a school website. She contends that Sr. X volunteered for the Committee after she did with the express intention to “keep an eye on her” either of her own volition or at the request of Ms. B. The respondent (Sr. X) rejects this assertion stating that she had a personal interest in establishing a school website and consequently she volunteered for the Committee adding that she did not even notice that the complainant had already volunteered. It is difficult to see why Sr. X would feel it necessary to “keep an eye” on the complainant as part of this Committee as any outcome from it would ultimately have to be approved by the Board of Management, of which she was Chairperson and the complainant was unable to provide any evidence in support of her assertion. In Melbury Developments v Arturs Valpetters [6] the Labour Court held that, when examining the probative standard required of a complainant, that “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.”. The complainant in the instant case has only advanced assertion and speculation as regards this element of her complaint and in those circumstances I find that she has failed to satisfy the initial probative burden required of her and cannot succeed.
5.11 The complainant contends that on the morning of 26 March, 2010 she was asked by Sr. Z to remove some teaching materials from her office which she (the complainant) had stored there for a couple of years. She asserts that Sr. Z was prompted to make the request by the Principal following the discussion she (the Principal) and the complainant had the previous day and the fact that she (the complainant) had written to the Board of Management the same day. The respondent (Ms. B) states that Sr. Z was a former member of staff but was in the school every day, adding that she was unaware of there being any issue around storage of items by the complainant in the office in question. It can offer no explanation for any such request and both Sr. X and Ms. B reject the assertion that either of them spoke with Sr. Z about the complainant. The complainant offered no credible evidence that either Ms. B or Sr. X spoke with Sr. Z during the small number of hours between the discussion between complainant and Ms. B on 25 March, 2010 and the alleged request the following morning. It is difficult to see how any request by Sr. Z could amount to adverse treatment of the complainant in terms of section 74(2) of the Acts in those circumstances. In light of my comments in the preceding paragraph in respect of Melbury Developments v Arturs Valpetters [7] I find that the complainant has failed to establish facts from which it could be inferred that this alleged incident amounts to victimisation of her contrary to the Acts and it therefore fails.
5.12 The next alleged incident of victimisation concerns events connected with the complainant’s absence from work from 12 April, 2010 – 16 April, 2010. There is undoubted confusion as regards the discussions between the complainant and the Principal’s Secretary at the time, but even taken at their height they could not amount to victimisation of the complainant contrary to the Acts. There is dispute between the parties as regards the events surrounding the complainant’s return to work and in particular whether or not the complainant passed the medical certificate to the Principal. The complainant states that she brought the medical certificate to the Principal’s Office to report for duty and to hand her the certificate. She states that she knocked on the door, that the Principal had someone in the room, took the certificate, thanked her abruptly and closed the door in her face. The respondent rejects this and states that no such events occurred and that it never received the medical certificate at all. I note that the complainant went to the bother of sending the Principal a written memo (on 12 April, 2010) attaching information on the work to be continued with her classes and reminding her of scheduled supervision during her absence. From examination of the material submitted to me in the course of my investigation and from my observation of the complainant at the Hearing, it is clear to me that she is someone who observes rules and established practice. In my view it is therefore extremely unlikely that she would not have reported back for duty as she says and personally deliver the medical certificate as she says. Consequently, I prefer the complainant’s version of events. The complainant states that when she arrived at Ms. B’s Office the Principal had someone with her, that she took the certificate from her, thanked her and then closed the door in her face. It appears therefore that Ms. B acted in a civil manner towards the complainant until she closed the door. In circumstances where Ms. B had someone with her and in light of the events of 25 March, 2010, it is highly likely Ms. B was seeking minimise the possibility of a recurrence of those events and closed the door swiftly. Having carefully considered this matter I am not satisfied, on balance, that the behaviour of Ms. B amounts to adverse treatment of the complainant in terms of section 74(2) of the Acts and this element of her complaint fails.
5.13 The final element of the complainant’s claim of victimisation grounded on her letter of 25 March, 2010 relates to the alleged amendment of a document entitled “Schedule of Posts 2008/2009 which omitted certain aspect of her role as an Assistant Principal as regards “School Development Planning” previously included on a similar document which had been on the notice board in the Staffroom. The complainant is unable to say when this omission occurred or who altered the document but asserts that it was the Principal. The respondent accepts that there is a requirement for a review of Posts of Responsibility under the relevant Departmental Circulars and states that at the time in question the Schedule of Posts system was in disarray in the school. It accepts that the document entitled “Schedule of Posts for 2008/2009” differs from the previous Schedule of Posts 2007/2008 in that the latter indicates the complainant has responsibility for “School Development Planning” whereas this is omitted in the former. It can offer no explanation for this omission and states that it had no reason to believe the document retained in the Principal’s Office was other than correct and released same to her as part of her data protection request. Ms. B rejects the assertion that she altered the document. As stated previously in this Decision mere assertions are insufficient to satisfy the initial probative burden required. The complainant has not advanced even a single fact in support of her assertion that Ms. B altered this document, let alone that she suffered any adverse treatment in terms of section 74(2) of the Acts. Consequently, she has failed to establish a prima facie case of victimisation contrary to the Acts and this element of her claim also fails.
5.14 I shall now deal with the only allegation of victimisation grounded on the complainant’s letter of 31 May, 2010. As stated at paragraph 5.8 above this letter expressly states she considers herself to have been discriminated against contrary to the employment equality legislation and it therefore amounts to a protected act in terms of the first arm of the test set out in Tom Barrett v Department of Defence[8]. The complainant states that she received a letter from the Chairperson of the respondent’s Board of Management (Sr. X) dated 11 June, 2010 and asserts that this correspondence threatens her with disciplinary action on foot of the allegations detailed by the Principal in her letter of 2 April, 2010 to the JMB. In support of this assertion she states that the requirement to furnish her response to the approach proposed by the respondent within twenty-one days is consistent with invoking the Disciplinary Procedure against her. The complainant adds this letter insists that any meeting between her and the Board of Management to resolve ongoing issues between them (which she had raised in her letters of 25 March, 2010 and 31 May, 2010) must also address the issues detailed in the Principal’s letter of 2 April, 2010 to the JMB. The complainant submits that the approach of the respondent in this regard, in addition to threatening disciplinary action amount to victimisation of her contrary to the Acts.
5.15 The respondent rejects this assertion and states that the first time the Board of Management became aware of the Principal’s letter of 2 April, 2010 was when collating the documentation in response to her data protection request. It adds (Sr. X) that the Board was quite shocked at the contents of this letter and discussed it at the Board Meeting on 9 June, 2010. She adds that by that time the Board of Management had received the complainant’s letter of 31 May, 2010 and the Board considered it was best to deal with the totality of the issues between the complainant and the school. It was in that regard it proposed a meeting with the complainant in its letter of 11 June, 2010. The respondent (Sr. X) rejects the complainant’s assertion that the contents of this letter threaten disciplinary action, although she accepts it makes reference that the behaviour as detailed in the letter of 2 April, 2010, if true, could warrant disciplinary action. She states that there is a structured format for invoking any disciplinary action against a teacher; that this is covered by the relevant Department of Education and Science (as it then was) Circular 60/2009 and that the complainant was well aware of this Circular. She submits that the letter of 11 June, 2010 could not be construed as invoking that process against the complainant. The respondent accepts that the letter seeks a response to the proposal contained therein within twenty-one days but submits that such a deadline is reasonable given the time of year involved. It adds that this deadline was extended until end August, 2010 (in its letter of 21 June, 2010 to the complainant) and was not therefore set in stone. The respondent states that in any event, the complainant was not subjected to any disciplinary action on foot of its letter of 11 June, 2010.
5.16 I have examined the respondent’s letter of 11 June, 2010 (received by the complainant on 13 June, 2010) and I am satisfied that the contents of same could not be construed as invoking the formal Disciplinary Process against the complainant. There was an agreed process governing discipline of teachers in operation at the time which was set down in Department of Education and Science Circular 60/2009. I am satisfied that the complainant as ASTI Steward and a teacher of twenty-four years’ standing would have been well aware of this formal process. The reference in the letter to twenty-one days in which to file a response to the respondent’s letter could not, by any stretch of the imagination, transform the letter into one issued pursuant to the Disciplinary Process. In any event, I note the twenty-one day deadline was extended until end August, 2010 (in the respondent’s letter of 21 June, 2010 to the complainant). Consequently, any fears the complainant may have held at that time (in respect of the formal Disciplinary Process being invoked against her on the basis of the inclusion of this timeframe in the letter of 11 June, 2020) should have been allayed on receipt of the letter of 21 June, 2010. Whilst there is a reference to “disciplinary action” in the letter of 11 June, 2010 this is couched in terms of the Board expressing a view that if the allegations contained in Ms. B’s letter of 2 April, 2010 were proved true, it could, in the normal course of events lead to disciplinary action. This does not amount to a threat, veiled or otherwise, that the Board was invoking the formal Disciplinary Process against the complainant.
5.17 It is common case that the complainant and respondent had been engaged in extensive written correspondence extending back to 25 March, 2010 about concerns the complainant had. The most recent of these was the complainant’s letter of 31 May, 2010. On becoming aware of the Principal’s letter of 2 April, 2010 to the JMB the respondent decided, after discussing the matter at it Board Meeting on 9 June, 2010 (copies of the minute of this meeting were furnished to the Tribunal and confirm that a discussion on the matter took place) to propose that all issues between the parties should be addressed at a single meeting. As I have already held that there was no disciplinary issue involved I am satisfied that this was a pragmatic approach to propose. I can find no basis upon which to hold that such a proposition could amount to adverse treatment of the complainant contrary to section 74(2) of the Acts. In conclusion, in light of my comments in this and the preceding paragraph I am not satisfied that the complainant has established a prima facie case that the contents of the respondent’s letter of 11 June, 2010 constitutes victimisation of her contrary to the Acts and this element of her complaint fails.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the complainant has failed to establish a prima facie case that the respondent discriminated against her on grounds of marital status, in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts as regards her condition of employment and
(ii) the complainant has failed to establish a prima facie case that the respondent victimised her in terms of section 74(2) of the Employment Equality Acts, 1998-2008.
6.2 As the complainant has failed to establish a prima facie case of discrimination and victimisation in respect of the alleged incidents of such treatment within the six months immediately preceding the date of referral of her complaint, the remainder of the alleged incidents of discrimination and victimisation submitted by her in respect of the period prior to that (which is outside of the period prescribed at section 77(5) of the Acts are statute barred and her complaint fails in its entirety.
_______________________________
Vivian Jackson
Equality Officer
16 December, 2013
Footnotes:
[1] EDA 1124
[2] EDA 1017
[3] EDA1017
[4] Ibid.
[5] Ibid
[6] EDA 0917
[7] EDA 0917
[8] Ibid.