FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BOARD OF MANAGEMENT OUR LADY OF GOOD COUNSEL GIRLS NATIONAL SCHOOL (REPRESENTED BY MASON HAYES & CURRAN SOLICITORS) - AND - MARIA FITZGIBBON DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008.
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 26th October, 2012. A Labour Court hearing took place on the 27th June, 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Maria FitzGibbon against the decision of the Equality Tribunal in her complaint of discrimination against the Board of Management of our Lady of Good Counsel Girl’s National School. The complaint was made under the Employment Equality Acts 1998-2011.
The parties are referred to in this Determination as they were at first instance. Hence, Ms FitzGibbon is referred to as the Complainant and the Board of Management of Our Lady of Good Counsel Girl’s National School is referred to as the Respondent.
At first instance the Complainant was represented by her trade union, the Irish National Teachers Organisation. At the hearing of the appeal she appeared in person. The Respondent was represented at first instance and in the appeal by Mr Brian Foley B.L, instructed by Mason Hayes and Curran, Solicitors.
The Scope of the Complaint
In her complaint to the Equality Tribunal the Complainant alleged discrimination on the age ground and also the marital status ground in the filling of a post of Principal of the Respondent school. The Complainant was in her 50’s at the material time whereas the successful candidate was in her late 20’s. The Complainant is married and the successful candidate is single. The precise factual and legal basis upon which the complaint was grounding her claim was not clear to the Court from the papers filed in the case. In these circumstances the Court convened a case management conference on 21stFebruary 2013 before listing the case for hearing.
In the course of this case management conference it became clear that, in relation to the age ground, the gist of the Complainant’s case was that the selection board appointed to fill the disputed post failed to conduct the competition in accordance with mandatory rules governing the conduct of such competitions. It was contended by the Complainant that this failure placed candidates in her age group at a particular disadvantage relative to younger candidates. This, she claimed, resulted in the younger successful candidate receiving higher marks than those awarded to her. In particular the Complainant contended that the selection board failed to take account of teaching experience (which is a mandatory factor). She contended that since experience is associated with age this deprived older candidates from obtaining credit in the competition to which they should have been entitled. The Complainant also contended that the selection board also failed to take account of qualifications in the marking system which they applied.
With regard to her claim of discrimination on marital status grounds the Complainant’s case is that her husband, who is the Principal of the boys' senior school on the same campus as the Respondent school, is in conflict with the Board of Management on certain issues and that this mitigated against her in her application. The Complainant characterised that as discrimination by association.
In the course of the case management conference the Court pointed out to the Complainant (who appeared as an unrepresented party) that the claim that she proposed to advance in relation to the age ground was one of indirect discrimination. In that regard the Court suggested that while there may be a correlation between age and experience there was no obvious correlation between qualifications and age. It was suggested to the Complainant that if she wished to pursue this latter aspect of her claim evidence would be required to show that if there was a failure to give due weight to the qualifications of candidates, that failure placed persons in her age bracket at a particular disadvantage.
In relation to the claim of discrimination on grounds of marital status, the Court drew the Complainant’s attention to the definition of marital status at s.2 of the Act. It was suggested that having regard to the statutory definition this ground relates to whether a person is married, single etc., and not to the person to whom they are married.
The Complainant agreed to reformulate her claims in light of the outcome of the case management conference. It was further agreed that the Complainant would prepare a fresh written submission setting out the factual basis of her claims and that this would be furnished to the Respondent within a timeframe that was agreed. The Respondent would then prepare a replying submission which would be furnished to the Complainant in advance of the substantive hearing of the appeal.
Both parties complied with the directions given at the case management conference. In her revised submission to the Court the Complainant confined her claim to one of indirect discrimination on grounds of age. She did not pursue her claim of discrimination on grounds of marital status. The hearing of the appeal proceeded accordingly.
Background to the Case
The Respondent is a girl's senior national school under the patronage of the Catholic Archbishop of Dublin. The post of Principal of the school became vacant in or about January 2008. An Acting Principal was appointed until the end of that school year (31stAugust 2008). The vacant post was advertised in the public press in April 2008. Three teachers applied for the post, including the Complainant.
A Selection Board was appointed by the Patron of the school consisting of the Chairperson of the Board of Management and four others. The three applicants were assessed by the selection board by way of interview. In advance of these interviews the selection board decided to assess candidates by reference to five criteria as follows: -
- 1. Contemporary issues in education
2. Curriculum issues
3. Ethos and vision
4. Interpersonal /communication skills
5. Leadership
The Complainant was placed second in the competition.
The Complainant’s case
The essence of the Complainant’s case is that the Respondent departed from the criteria prescribed for the appointment of School Principals set out in a document entitled “Constitution of Boards and Rules of Procedure”. The procedures set out in this document were agreed between the Minister for Education and School Patrons pursuant to s.23 of the Education Act 1998. Rule 3 of Appendix D of this document provides that in selecting a candidate for appointment the selection board will take into account: -
- 1. Professional qualifications
2. Teaching experience and reports on competence
3. Other relevant experience
The Complainant contends that the selection board did not award marks under these headings. It is the Complainant’s case that the failure to award marks under these headings, and in particular under heading 2 above placed persons in her age group at a disadvantage.
The Complainant submitted that the rules contained in the Constitution of Boards and Rules of Procedure are mandatory. In advancing that proposition the Complainant relied on the decision of the High Court inPhylis Brown v Board of Management of Rathfarnham Parish National SchoolIEHC 178.
The Respondent’s case
The Respondent denies that the Complainant was discriminated against on grounds of her age or at all. The Respondent denies that it departed from the Rules relied upon by the Complainant and contends that she is misinterpreting the Rules. It contends that on their true construction the Rules required the selection board to take the matters listed into account as factors rather than as specific individual criterion against which marks will be awarded. They say that these factors were taken into account in awarding marks under the various headings used in the selection process. The Respondent accepts that the Rules contained in the Constitution of Boards and Rules of Procedure are mandatory. It does not accept, however, that the rules require selection boards to award marks by express reference to the factors contained at Rule 3 of Appendix D. Counsel for the Respondent submitted that in advancing the contrary argument the Complainant misconstrued the import of the decision inPhylis Brown v Rathfarnham Parish National School.
Three members of the selection board gave evidence on behalf of the Respondent, namely, Mr Dermot Cole, who is Chairperson of the Board of Management and who chaired the Selection Board, Sr Basil Gaffney, a former Principal of another school and Mr Sean Finn who is a Human Resources professional in a major State enterprise.
Each of the witnesses told the Court that applicants were assessed by reference to the criteria agreed by the Selection Board in advance of the interviews. All candidates were asked the same questions which were designed to allow the candidates to advance their particular attributes and suitability for the post. It was the evidence of all three witnesses that the mandatory factors referred to in Rule 3 of Appendix D in the Constitution of Boards and Rules of Procedure were taken into account in assessing candidates under each of the agreed criteria. Each of the witnesses told the Court that marks were awarded on the basis of each candidate’s performance by reference to the agreed criteria and having regard to the specific factors referred to in Appendix D. This, they said, was in accordance with the requirements of the mandatory rules.
The law
The legal principles applicable in a case such as this are well established. They were most recently set out by this Court in Determination EDA131,Dr Eleanor O’Higgins v University College Dublinand, for the sake of completeness, should be set out again in this Determination. Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
The type or 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 appropriately be drawn to explain a particular fact or a 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 reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
Particular considerations apply in cases in which discrimination is alleged in the filling of jobs, including promotions. In Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technologythis Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merit 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.
In Determination EDA077-O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal inWallace v. South Eastern Education and Library BoardIRLR 193. Here, Lowery LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination.
The application of these general principles was considered by this Court inAn Employee v A Government Department[2006] 17 E.L.R. 225. This was a case in which a recovering alcoholic claimed to have suffered discrimination on grounds of disability in the filling of promotional posts. The posts in issue were filled on the basis of seniority and suitability through a system of promotion operated by the Civil Service in which candidates were considered by a group of senior managers in what was known as a consistory. The Complainant in that case was the most senior applicant but he was deemed to be unsuitable for unstated reasons.
In considering the circumstances in which the probative burden shifts, the Court held as follows: -
- There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can, in themselves, give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate's chances of success were as much dependant on their principal officer's power of advocacy and his or her standing with their peers, as on the candidate’s ability to undertake the duties of the higher post.
On the facts of that case the Court held that the Respondent carried the burden of proving the absence of discrimination.
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the gender of the complainant and the impugned act or omission alleged to constitute discrimination. Thus, inWong v Igen Ltdand others[2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
In all discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. InNagarajan v London Regional Transport[2001] UKHL 48, Lord Nicholls of Birkenhead said the following: -
- I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
While that case involved a claim of racial discrimination the general principle enunciated by Lord Nicholls is equally applicable in cases involving other forms of discrimination.
A similar approach was taken by this Court inNevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -
- Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
InNevins, Murphy, Floodthe Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain inBarton v Investec Henderson Crosthwaite[2003] I.R.L.R. 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden.
The Court has also considered the decision of Quirke J inPhylis Brown v Rathfarnham Parish National Schoolupon which reliance is placed by the Complainant. That case concerned an application, by way of judicial review, to quash the decision to appoint the notice party in the proceedings to the post of Principal of the Respondent school. The application was grounded on a number of alleged irregularities in the competition including the acceptance by the Respondent of a late application for the post by the notice party. The Respondent in that case advanced the argument,inter alia,that the rules were to be construed as guidelines and that the Board of Management retained a degree of discretion on their application. The applicant in the case contended that the rules were mandatory and that a failure to observe those rules vitiated the competition.
In giving judgment in the case Quirke J held that the intention of the Rules of Procedure made pursuant to s 23 of the Education Act 1998 was not to accommodate the administrative convenience of the first Respondent but to provide a fair selection process for candidates which required the application of specific fair procedures in the appointment of principal teachers and in applying those procedures, the first respondent was required to exercise its functions judicially. The Judge went on to hold that whilst the Rules did not form part of a statute and could not be construed as such, they comprised rules of procedure authorised by statute and formed part of a statutory regime and were mandatory. The Judge granted the reliefs sought on the basis that the rules had not been complied with.
Conclusions of the Court
In the instant case what is contended for by the Complainant is that the Rules, in effect, required the selection board to expressly award marks under each of the headings specified in appendix D which are set out earlier in this Determination. In particular she contends that marks should have been awarded expressly for experience in teaching. It is the Complainant’s case that had the selection board done so she would have been the successful candidate in the competition.
Having reviewed the Judgment inPhylis Brown v Rathfarnham Parish National Schoolthe Court is not satisfied that it is authority for the proposition contended for by the Complainant. It decided that the rules are mandatory rather than discretionary but it did not hold that the factors referred to in Appendix D must be applied as separate and distinct criteria against which marks must be expressly awarded in assessing candidates.
The Court accepts on the evidence that the selection board took account of these mandatory factors in assessing candidates under each of the criterion which it used in the assessment of candidates. Each of the witnesses who gave evidence on behalf of the Respondent told the Court how they assessed experience and the other mandatory factors in making their decision under each of the criterion used in the competition. They also told the Court why they attached greater weight to the experience of the successful candidate over that of the Complainant.
The Court accepts the veracity of the evidence tendered by these witnesses. It is satisfied that experience was taken into account in the competition but the weight to be ascribed to that consideration is a matter for the selection board. It is not a matter for this Court to substitute its views on the appropriate weighting for that of the designated decision makers.
It is acknowledged by the Respondent that the Complainant was a meritorious candidate and was found to be suitable for appointment as a School Principal but the Selection Board considered the successful candidate more meritorious. The Court fully understands the Complainant’s disappointment at the outcome. However, this case must be decided by application of the relevant legal principles.
Section 85A of the Act and the test for the application of that provision formulated by this Court inMitchell v Southern Health Board[2001] E.L.R. 201requires the Complainant to prove the primary facts upon which she relies in advancing her claim of discrimination. The primary fact relied upon by the Complainant in this case is her contention that the Respondent failed to take account of herexperience as a teacher in the competition and that this failure resulted in her being indirectly discriminated against. On the evidence the Court is satisfied that she is mistaken in that regard and that the selection board did take account of experience in the competition. The Court is further satisfied that the competition was properly conducted and that there was no irrationality in the result.
Accordingly, the Complainant has failed to establish facts from which discrimination on the age ground can be inferred. In these circumstances the Complainant cannot succeed.
Determination
For all of the reasons set out in this Determination the Court must disallow the Complainant’s appeal and affirm the decision of the Equality Tribunal.
Signed on behalf of the Labour Court
Kevin Duffy
4th July, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.