EDA1224

In May 2007 County Meath VEC (hereinafter “the Respondent” or “the Respondent Committee”) advertised a vacancy for the position of Deputy Principal in Dunsaughlin Community College. Ms. Geraldine Horgan and Ms. Helen Comiskey (hereafter "the Complainants") responded to the advertisement and applied for the post. They were included on a shortlist of candidates and called for interview on the 19^thJune 2007. Neither of the Complainants were successful in the competition. The successful candidate was younger and had less teaching experience than either of the Complainants.

The Complainants complained to the Equality Tribunal that the Respondent discriminated against them on the age ground in relation to their applications for the position of Deputy Principal contrary to Section 8(1) of the Employment Equality Act 1998

The Equality Officer investigated the complaints and made the following Decision

• Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:

  I find that the complainants have not established a prima facie case of discrimination on the age ground. Therefore, the cases fail.

The Law

Discrimination on the age ground has been unlawful in Ireland since the coming into force of the Employment Equality Act 1998. In 2000 the E.U. adopted Council Directive COUNCIL DIRECTIVE 2000/78/EC. That Directive establishes a right to equal treatment in relation to access to employment and promotion regardless of age and prohibits both direct and indirect discrimination on the that ground.

The preamble to the Directive provides in relevant part

Article 12 provides

• (12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third
  countries but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and occupation.

• (25) The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and
  therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational
  training objectives, and discrimination which must be prohibited.
  

• Purpose
  The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
  • Concept of discrimination

• • 1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in

• • Article 1.
    
    2. For the purposes of paragraph 1:
    
    (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of
    the grounds referred to in Article 1;
    
    (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular
    disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
    
    • (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or
      
      (ii) as regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
    
    Article 3
    
    Scope
    1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public
    bodies, in relation to:
    
    (a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all
    levels of the professiona l hierarchy, including promotion;
    
    (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience;
    
    (c) employment and working conditions, including dismissals and pay;
    
    (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits
    provided for by such organisations.
    
    Justification of differences of treatment on grounds of age
    
    1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law,
    they are objectively and reasonably justified by a legitimate L 303/20 EN Official Journal of the European Communities 2.12.2000 aim, including legitimate employment policy, labour market
    and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Such differences of treatment may include, among others:
    
    (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
    
    (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
    
    Burden of proof
    1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because
    the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or
    indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
    
    2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
    
    3. Paragraph 1 shall not apply to criminal procedures.
    
    4. Paragraphs 1, 2 and 3 shall also apply to any legal proceedings commenced in accordance with Article 9(2).
    
    5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case

The Equality Act 1998 as amended by the 2004 Act transposes the Directive into Irish law.

Section 6 of the Act in relevant part provides

• • 6.— (1) For the purposes of this Act , discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
    
    (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act ) are—
    
    • • • (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

• • Section 4.
    
    Amendment of Section 6
    
    4.— Section 6 (discrimination for purposes of Act ) of the Act of 1998 is amended—
    
    (a) by substituting the following subsection for subsection (1)
    
    • “(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’) which—
    • • • • (i) exists,
    • • • • (ii) existed but no longer exists,
    • • • • (iii) may exist in the future, or
    • • • • (iv) is imputed to the person concerned,
    • • • (b) a person who is associated with another person—
    • • • • (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
    • • • • (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.”,
    
    (b) by inserting the following subsection after subsection (2)
    
    • “(2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”,
    • • • and
    
    (c) by substituting the following subsection for subsection (3)
    
    • “(3)
      • • (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.
    • • • (b) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.
    • • • (c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employ—ment shall not be taken as constituting discrimination on the age ground.
    • • • (d) Subsection (1)(b) of section 2 (exclusions) of the Unfair Dismissals Act 1977 is amended by deleting ‘or who on that date was a person to whom by reason of his age the Redundancy Payments Acts 1967 to 1973 , did not apply’ and inserting ‘or who on that date had not attained the age of 16 years’.”.

• • 8.— (1) In relation to—
    
    • • • (a) access to employment,
    • • • (b) conditions of employment,
    • • • (c) training or experience for or in relation to employment,
    • • • (d) promotion or re-grading, or
    • • • (e) classification of posts,
    • an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

• • (4) A person who is an employer shall not, in relation to employees or employment—
    
    • • • (a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1) , or
    • • • (b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

• • (5) Without prejudice to the generality of subsection (1) , an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—
    
    • • • (a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or
    • • • (b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.

• • 
    (6) Without prejudice to the generality of subsection (1) , an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
    
    • • • (a) the same terms of employment (other than remuneration and pension rights),
    • • • (b) the same working conditions, and
    • • • (c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
    • as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

• • (7) Without prejudice to the generality of subsection (1) , an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.
    

• • (8) Without prejudice to the generality of subsection (1) , an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—
    
    • • • (a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or
    • • • (b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

• • “85A.— (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 him or her, it is for the respondent to prove the contrary.
    
    (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
    
    (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
    
    (4) In this section ‘discrimination’ includes—
    • • • • (a) indirect discrimination,
            (b) victimisation,
            (c) harassment or sexual harassment,
            (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section , is null and void.
    
    (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act , are revoked.”.
    

The Complainants argue that the respondent discriminated against them on the age ground in the manner in which it set out to select a younger person for appointment to the post of Deputy Principal in the Community College Dunshaguhlin. They maintain that they were both more qualified for appointment than the successful candidate. They further maintain that they both had proven track records of competence and capacity to meet the needs of the post. They maintain that the respondent treated them differently to younger candidates in the interview process when making the appointment.

They maintain that the events that followed the publication of the outcome of the competition are significant in this regard. They maintain that those events revealed evidence of a strong bias towards the appointment of a younger candidate. They maintain that significant public utterances by the Chief Executive Officer of the VEC subsequent to the outcome of the interview process supports their view that age discrimination played a part in the selection process.

They maintain that evidence of bias in favour of a younger candidate can be found in in a number of components of the appointment process including the official application form for the vacancy, the interview process conducted by the Respondent Committee and in the allocation of marks by the interview panel appointed for the purpose of selecting a candidate to fill the post.

They maintain that not all of the candidates were asked the same questions. They maintain that no questions were asked about the Complainants' proven track records as Teachers, their role as senior Managers in the School or elsewhere or regarding other educational experience they had accumulated over their careers.

They maintain that this put them at a particular disadvantage as vital information about their careers and experience was excluded from the process. Such an approach, they maintain, placed younger candidates, that were less qualified and had a much shorter teaching and management record, at an advantage in the selection process. They maintain that the selection process itself was founded on a subjective and discriminatory procedure that lacked transparency and was designed to achieve a particular outcome.

They maintain that in the period leading up to the filling of this post there was an atmosphere in the School Staffroom that revealed a management preference for advancing the careers of younger teachers to the disadvantage of older staff members. They maintain that there was an overwhelming emphasis on the importance of information technology and that this was due to the Principal's past involvement in the computer business and his continued links with a named information technology company.

They maintain that during this time young computer literate teachers were selected to lead the introduction of information technology into a classroom setting. They maintain that most items of new computer technology was allocated to younger staff. They maintain that no Assistant Principal was given the opportunity to become involved in or develop any real knowledge of the project. They maintain that the Respondent discriminated against the more senior experienced teachers in the methods it chose to introduce the new information technology into the school. They maintain that the School’s link with a named information technology company influenced the selection of a younger computer literate candidate for the vacant Deputy Principal post.

They maintain that the entire recruitment process was designed to disadvantage older, more experienced and qualified candidates in favour of a younger candidate.

They maintain that applicants were required to give details of their date of birth on the application form. They maintain that this is unlawful. They maintain that the primary reason such a question would appear on an application form was for the purposes of being taken into consideration in the appointment process.

They maintain that the application form was designed to limit the opportunity available to candidates to outline their qualifications and experience. They maintain that, by way of contrast, a disproportionate amount of space was made available to candidates to outline their theoretical knowledge and their vision for the future in the post. They maintain that the overall layout of the form favoured the younger candidate.

They maintain that the normal criteria for short-listing candidates was abandoned. They maintain that only outside candidates were required to have management experience. They maintain that all internal candidates were shortlisted for interview regardless of the extent of their management experience. They maintain that this 'lowering of the bar' was introduced to facilitate younger candidates who did not have management experience and who would not normally be called for interview. They maintain that the successful candidate, whom they assert had failed to obtain an Assistant Principal post in earlier competitions, was thereby short-listed for interview. They maintain that this practice amounted to a deviation from normal good practice and raises an inference of bias towards a favoured younger candidate from the outset.

It was submitted that the Respondent used a minimalist interview panel to facilitate the appointment of the younger, favoured candidate. They maintain that the interview board did not have sufficient knowledge of the School to understand its requirements.

They maintain that the Chief Executive Officer displayed a bias towards the younger candidate from the outset at the interview. They maintain that the reduced size of the panel meant that there was no competent independent person capable of challenging the Chief Executive Officer's biased opinion. The Complainants believe that the panel was merely going through the motions to appoint the favoured candidate. They maintain that the panel lacked the experience and qualifications to adequately question the older experienced candidates and consequently denied them the opportunity to present themselves in their best light.

They maintain that in such circumstances an older candidate could not perform to their best ability and that such a panel favoured younger candidates.

They maintain that each candidate was allocated a very short period of time at interview. They maintain that such a short time (25 minutes for interview, 6 minutes for presentation) was wholly inadequate to assess the merits, qualities and experience of older candidates. They maintain that the panel asked no probing questions of the candidates and that those questions that were asked tended to downplay the value of proven accomplishments in favour of visionary intentions.

They maintain that the questions asked at interview were very casual, almost flippant in nature and included questions such as "Are schools a democracy?"

The first-named candidate, Ms Geraldine Horgan, maintained that she was asked questions that she described as being limited in range and of a narrow technical or hypothetical nature. She submitted that they lacked the probing edge required to differentiate between candidates at a senior management level in education. Both candidates submit that there are no exact interview records. The complainants submit that when they compared notes of the interview they discovered that the candidates were not asked the same questions. Both candidates maintain that their answers were cut short by the Chief Executive Officer and that they were not provided with an opportunity to elaborate on matters.

The Complainants expressed concern about the lack of clarity regarding the process of awarding marks. They maintain that there the Respondent Committee delayed when requested to provide them with details of their marks at interview. They maintain that they had queried whether or not marks were awarded at short-listing stage and stated that they had been told that no marks had been awarded at that time.

The Complainants maintain that this is not correct. They maintain that it is clear that marks were awarded for qualifications, relevant experience, etc. They maintain that despite this these issues were not explored at interview.

The Complainants maintain that a number of questions remain unanswered regarding the manner in which marks were awarded at interview.

The first-named Complainant, Ms Geraldine Horgan, stated that, bearing in mind the quality of her responses to the questions combined with her proven track record in education and the depth of her experience, she could not understand how she could have scored lower than the successful candidate unless she was scored down because of her age. She maintains that there was a lack of objectivity, fairness and good practice in relation to the appointment of the Deputy Principal.

The first-named Complainant maintains that she is better qualified and has more relevant and extensive experience than the successful candidate. She disputes, inter alia, the marks she was awarded under the heading “Information Technology”. She maintains that her skills were equivalent to or higher than the successful candidates.

She maintains that the average age for appointment is 40-45 years and that the average length of experience required for appointment is normally in excess of 15 years. They maintain that appointing an applicant with less than 10 years’ experience amounts to a break with the norm.

The second- named Complainant, Ms Helen Comiskey, maintains that she is better qualified and has more relevant experience than the successful candidate. She stated that she has been discriminated against on the basis of her age at all stages of the interview process. She maintains that key aspects of her capacity to undertake the duties of the post were not developed at interview due to the superficial nature of the questioning engaged in by the interview board.

Ms Helen Comiskey’s Evidence

In evidence Ms Comiskey stated that the Respondent discriminated against her by the adoption of an unfair and biased selection process in the filling of the post. She stated that, compared to the successful candidate, she is a more qualified teacher with a proven capacity to meet the needs of the position. She stated that the Respondent discriminated against her by consciously preferring a younger candidate when making the appointment.

She stated that she commenced working for the School, Dunshaughlin Community College (DCC), when it opened in 1977. She said that at the time of the interview for the impugned post she was one of the most experienced senior teachers at the school. She stated that she had 17 years’ experience as a Special Duties Post holder, ten years’ experience as an Assistant Principal and three years as Co-ordinator of Programmes.

She stated that she has kept herself abreast of professional developments in both her subject area and in the education field in general. She stated that she had worked as a TEFL teacher in Paris for two years; had taught in DCC for 31 years, had held a Special Duties Post for 17 years, had acted as the Assistant Principal Transition Year Co-ordinator for 10 years, had acted as Co-ordinator of Programmes for 4 years, as Head of Art Department for 30 years, had carried out Supervision and Substitution for 30 years and had engaged in extra curricular activities for 30 years. She said that she had worked as an Examiner and Advising Examiner for Junior Certificate Art, Craft and Design and examined Leaving Certificate Art for several years. She said she was an active member of the Art Teachers’ Association and was Treasurer of the Association for 4 years and President for 2 years. She said that she was presently the Chairperson for the N.C.C.A. Course Committee on Leaving Certificate Art for 10 years.

She said that she had, through this work, acquired and demonstrated a wide range of management and leadership skills.

She said that in the 12 months leading up to the filling of this post there had been a move towards involving younger Teachers in a computer- based project known as “ Schools of the Future Project” to the exclusion of older more experienced Teachers. She said that the successful applicant had been approached by Mr Ryan, the then School Principal, to lead this Project. She said that this involved her in direct meetings with representatives of the multi-national company providing the software and equipment for the Project. She said that senior staff had been excluded from the Project and only became aware if its significance after the Conference in Edinburgh in 2007 at which the School was chosen as one of 12 schools worldwide to participate in the Scheme. She said that the exclusion of senior staff from this Project had profound implications for their promotional prospects as it effectively became a prerequisite for consideration for promotion.

She said that she was required to state her age on the application form. She said that this indicated that age was a factor that was taken into account in the decision-making process.

She said that applicants were normally shortlisted on the basis of their qualifications and experience. She said that in this case all internal candidates were shortlisted irrespective of their experience. She said that this was particularly the case in relation to management experience. She said that outside candidates were required to possess such experience but internal candidates were advanced to interview stage without meeting this requirement. She said that this was done in order to enable the board to select a younger candidate who did not otherwise have the required management experience to qualify for inclusion on the shortlist.

She said that the interview panel consisted of three people. Normally the panel consisted of five people. In addition she said that the School Principal, who would normally be present as a nonvoting observer, was not present on this occasion. She described this as a further departure from normal practice.

She said that the composition of the interview panel was part of a process designed to enable the Chief Executive Officer select a younger candidate for the post. She said that the other interview board members were not sufficiently independent to challenge any Chief Executive Officer and were therefore unduly under his influence.

She further stated that the panel members lacked the experience and qualifications necessary to adequately question the older more experienced candidates and thereby denied them the opportunity of a fair interview.

She said that the time allocated to each of the candidates was inadequate for the task at hand. The interview lasted 40 minutes. This included an introduction and conclusion that lasted several minutes along with a six- minute presentation to the panel. In total therefore each candidate had between 20 and 25 minutes effective interview time. She said that this was not sufficient time to explore the candidates experience and suitability for the post.

She said that the interview itself was casual to the point of flippant. The questions were rather vague such as “Are schools a democracy?” and “Who makes decisions?” She said that she had to constantly seek clarification of the aspect the questioner was referring to. She said that the questions were designed to be vague so as to limit the opportunities for her to refer to her experience and record. Instead she was asked to deal with ill- defined hypothetical questions that were designed to favour a person without experience or a record of achievement.

She said that the final question she was asked at interview by the CEO was “Do you not think that the job of Deputy Principal belongs to someone with exceptional I.T. skills”.

She said that the job on offer was not in information technology and the ability to manage students, staff and parents was a more important quality than an ability with information technology. She said she was shocked at the question but took it as an indication that she would not be the successful candidate.

She said that she was surprised that the interview was conducted without once referring to her Curriculum Vitae. She said that she felt this was done to deprive her of the opportunity to display her knowledge and skills. She said that this facilitated the appointment of a younger candidate who did not possess comparable proven experience and management skills.

She said that when the results came out she was shocked. She said that when she was given a copy of the marks she was awarded she was convinced she had been discriminated against in favour of the younger less experienced candidate.

She said that the marking template and the allocation of marks were neither transparent nor fair. She said that the weighting of the various headings was arbitrary. She said that the heading Management/Organisational Skills is ambiguous. Management skills require a proven track record. However organisational skills do not. She said the weighting of these two aspects of this section is not apparent from the documentation supplied.

She said that 15 marks were allocated to under the heading “Vision and Leadership”. She said that while vision is aspirational, leadership requires experience and a proven track record that comes with age. She said that it was unclear how the 15 marks were allocated between these two headings. She also said that the term “vision” was widely associated with the “School of the Future” Project. She said that the marking scheme was framed with this Project in mind.

She said that younger staff had been preferred for involvement in this Project. She said that older staff members were thereby discriminated against both by their exclusion from the Project and by being disadvantaged in the interview process for not having had such an involvement.

She said that given her qualifications, proven track record, good communications skills and knowledge of the field of education, she could not have scored less that the appointee at interview and that she was discriminated against on the grounds of age.

She said that she had been awarded a total of 12 marks out of a potential 15 under the heading “Relevant Experience”. She disputed this mark on the grounds that it was simply not consistent with the extent of her career in education which she listed as follows: -

• • She began teaching in 1975 giving her a total of 33 years at the time of the interviews. After two years teaching English as a foreign language in Paris she commenced work with Dunshaughlin Community College and taught Art for 31 years. For 17 years she held a Special Duties Post. She was Assistant Principal for 9 years, Co-Ordinator of Programmes for 4 years, Head of Art Department for 30 years, performed supervision and substitution for 30 years, had taken extra- curricular activities for 30 years, had organised student school tours on various topics for 30 years, had led the Outdoor Education Centres and the Irish College for 30 years and arranged and participated in international tours to various locations on numerous occasions over that time.

Development of the new Syllabus for Junior Cert. Art, Craft and Design.

Designed and presented Schools for Active Learning for N.U.I. Maynooth 1990’sShe wrote and presented in service training courses for national school teachers for Blackrock Teachers Centre (one week annually) for a period of approx. 8 to 10 years.

She participated in the design and delivery of Television, Radio and Media Training for Teachers.

She contributed to the television programme “Know Schools Today” and to the book “Shaping Space”

She was the author of the booklet that accompanied the Bank of Ireland C.D. of its Art Collection.

She contributed to newspaper articles on State Examinations and

presented 8 T.V. programmes for R.T.E. entitled Treasure Island.

She had worked as an Examiner and Advising Examiner for Junior Certificate Art, Craft and Design and had examined Leaving Certificate Art for several years.

She was an active member of the Art Teachers’ Association for many years, was its Treasurer for 4 years and its president for 2 years during the early 1990’s.

She was, for 10 years, the Chairperson for the N.C.C.A. Course Committee on Leaving Cert Art, a position she holds up to the present time.

Given this level of experience she said that she failed to see how she could have scored less than the successful candidate whose experience was far shorter and less extensive than her own.

She noted that 15 marks were available under the heading “Management/Organisational Skills. In this regard she said that her management and organisation skills had been proven over an extended period of time. She said that she held the post of Special Duties Teacher, Assistant Principal and Co-ordinator of Programmes in the College. She further said that she had demonstrated such skills through her involvement with the N.C.C.A., the Department of Education and the Blackrock Teachers’ Centre.

She itemised the management and organisational skills demanded of the post of Co-ordinator of Programmes. She further outlined the management and organisational skills demanded of her in her role as Transition Year Co-ordinator. She set out the management and organisational skills demanded of her in her role as Head of the Art Department in the school.

She pointed out that as part of the overall school senior management team she had, on many occasions, deputised for the Deputy Principal and School Principal when they were away or otherwise unavailable to discharge their roles.

She noted that the successful candidate had far less experience than she had in such managerial or organisationally demanding roles. Accordingly she failed to see how she was scored below the successful candidate under these headings at interview.

She noted that 15 marks were available under the heading Vision and Leadership. She said that she had demonstrated both vision and leadership over a career in teaching and associated work in the education sector. She noted that she had been involved in the creation of new curricula, the development of new programmes, the design and implementation of Transition Year activities, the planning and execution of school tours and involvement in the preparation and supervision of examinations. She noted that she had led teams of other professionals through these processes thereby demonstrating both her vision and her leadership abilities. She said that she was not given the opportunity to develop these points in the course of the interview. She said that when she tried to develop the leadership themes and challenges associated with the development of a supportive multicultural ethos in the School she was stopped short in her answers and moved on to other matters. She submits that this was designed to prevent her demonstrating her proven capacity for leadership and vision and indicating how it could be applied to current challenges facing the School.

She observed that the successful candidate, by contrast, had no record of leadership in the School, in the Department of Education, in curriculum development, in examination design or in the profession. She said that the short time allowed to her on this topic at interview was designed to ensure that she could not show up the successful candidate’s relative lack of a track record on these issues.

She noted that 15 marks were available under the heading Communication Skills. She noted that she had an excellent record of achievements to her credit under this heading. She noted that she had presented to parents, civil servants, students and other professionals. She noted that she had worked in the professional broadcast and printed media. She noted that she had led various specialist groups to a successful conclusion and that this required well developed communications skills.

She noted that the successful applicant had, by comparison, no comparable record yet was awarded more marks under this heading.

She noted that 20 marks were available under the heading Capacity to Meet the Needs of the Position.

She said that she had demonstrated such capacity over a lifetime of teaching and involvement in the management of projects in the field of education. She said that she had more than adequately discharged the tasks she had undertaken and had fulfilled the duties of any post that had been assigned to her. By comparison the successful applicant could show no comparable record of achievement yet was awarded higher marks than her. She challenged the basis for such a decision and submits that age discrimination is the obvious reason for such an otherwise unjustifiable decision.

She said that after she was told she had not been successful she wrote to the members of the Respondent Committee expressing her concern at the manner in which the vacancy had been filled. She said that she canvassed her union representatives and the Respondent Committee members with a view to correcting the wrong done to her. She said she subsequently learned that the CEO had addressed the issue at a meeting of the Respondent Committee and had made comments in the course of the meeting that exhibited a bias towards younger candidates. She said that she spoke to her union representative on the Respondent Committee regarding this matter but she was not willing to give evidence to this Court. She said she approached Ms Ellen Cogavin a parents’ representative on the Respondent Committee. She said that following a conversation with her she had drafted two statements that she presented to her for signature. She said that Ms Cogavin signed both of the documents as a true and accurate account of what she had told her in conversation.

She said the first such document stated

• • “At the meeting of the Meath VEC Monday 9^thJuly 07 when the CEO was asked why the candidates were not questioned about matters documented in their application form relating to their CV’s and previous relevant experience, he replied that the Application form for the post of DP in Dunshaughlin Community College was custom made, and that all members of the interview panel had details of the application form before the interviews and that the information had been taken into consideration”.

The second document stated

• • “At the meeting of the Meath VEC Monday 9^thJuly 07 members of the Committee voiced their concerns relating to the appointment of the new Deputy Principal in Dunshaughlin Community College.

    At the start of the meeting the CEO Mr Peter Kierans requested the Human Resources Section of the Meath VEC to outline the process of selection and the marking template prepared for the interviews.

    The CEO, Mr Peter Kierans then spoke on the matter. Among his many comments, he stated that the age profile of 50% of the staff of DCC was under the age of 35. He further inferred that in his view and in the view of the panel that a young DP was desirable for Community College Dunshaughlin.”

She said that whilst immediately after the results of the interviews were announced she was deeply hurt and shocked at the outcome she had no explanation for what had happened. She initially sought to have the job advertisement and interview process and outcome addressed and reversed and wrote to the members of the Respondent Committee accordingly. However, over the course of her discussions with various people and taking into account the conduct of the interviews and the comments of the CEO referred to above it became clear to her that age discrimination was at the core of the injustice done to her. On that basis she lodged her complaint with the Equality Tribunal under the Act.

She stated that prior to the interviews the School had been involved in a number of high profile initiatives regarding the use of computers in the classroom. A major multi-national firm was involved in this initiative. She stated that the she had been excluded from involvement in this initiative and that she had not been provided with the basic computer equipment that was at that time quite extensively deployed in the classroom. She stated that she had not been afforded the opportunity to train on the computer systems being introduced and that this put her at a disadvantage. She stated that while other staff members were provided with computers in 2005 she was not provided with one until 2007.

By contrast she stated that the successful applicant had been intimately involved in this initiative. She stated that she had been involved in the training associated with the project. She stated that she, the successful applicant, had been given access to the computer technology and to the software associated with that initiative. She stated that the successful applicant had been involved in direct engagement with the multi- national company involved in the initiative. However she said that the successful applicant did not have comparable extensive teaching experience and had held the position of vice principal on an acting basis for a very short period of time.

She stated that these facts taken together caused her to form the opinion that the interviews were structured to allow this younger candidate emerge from the process and be appointed.

She stated this opinion was strengthened by discussions she subsequently had with other candidates for the post.

Ms Geraldine Horgan’s Evidence

Ms Horgan stated that she commenced working for the Respondent since 1980.

She said that she entered the competition for the post with a reasonable degree of confidence that she could be successful. She said that her confidence evaporated as soon as she attended for interview.

She criticised the questions raised on the application form for the post. She stated that it required her to provide details of her date of birth which directly put her age at issue as part of the process of filling the post. She stated that in hindsight she found this an unacceptable requirement. She stated that it also revealed a disposition on the part of the Respondent Committee to take age into consideration when making the appointment.

She criticised the composition of the interview panel. She stated that the panel consisted of three people, the Chief Executive of the Respondent Committee, a Deputy Principal from another small school and a member of the Respondent Committee. She stated that she had expected a five-person panel. She stated that there was no School Principal on the interview board and that this surprised her. She stated that she was not confident at the time that the panel was properly constituted although she subsequently learned that it did comply with the procedures set out in the relevant Departmental Circular Letters. She stated that she expected that the School Principal would have been in attendance as a non- voting Observer. She stated that the make- up of the panel led her conclude that it did not possess the skills and experience necessary to conduct an independent and impartial interview. She said that she formed the opinion that it was simply going through the motions to achieve a predetermined outcome.

She said that the nature of the questions she was asked at interview was narrow, technical and limiting in nature that did not allow her exhibit the experience she had acquired over the course of her career in teaching. She said they lacked a probing edge that was necessary to enable the panel distinguish between candidates’ suitability for appointment to senior a management position. She stated that she formed the impression that the questions were designed to play down the value of her experience and to create a playing field on which a younger candidate with considerably less experience could shine.

She stated that various scenarios were put to her and she was asked how she would deal with them.

She stated that there was no transparent marking scheme for assessing the answers to those questions which effectively permitted the panel to favour whomever it wished. As a result she said that there was no transparency around its decision making.

She stated that the she was not asked about her C.V. during the interview. She said that she found this surprising.

She stated that, based on her conversations with other candidates, there appeared to have been some inconsistencies between the questions that were asked of the applicants. She said that at the end of the interview the Chairman asked her if she was satisfied with the interview she had received. She asked why she had not been asked questions about her experience or that would enable her to display the knowledge she had acquired over her career. She said the Chairman said that the panel had already taken these factors into account when reviewing the candidates’ C.Vs. She stated that this answer, given at the interview, was contradicted in the Respondent’s reply to question 19 of the Form EE.2 where it stated that information contained on the application form was explored via questions in the course of the interview.

She said that there was a lack of clarity regarding the awarding of marks. She said she sought a copy of the marks she received from each of the members of the interview panel. She said the Respondent did not provide these. Instead it supplied her with a copy of the overall marks awarded by the interview panel.

Referring again to the marks awarded to her she said that she did not understand how she did not get full marks under the heading “Qualifications”. She said she was awarded 9 marks. She said that there were 10 marks allocated to this heading and that she should have been awarded full marks based on her educational qualifications.

She said her when examining the document supplied by the Respondent Committee she noticed that the successful candidate was awarded a mark that appears to have been subsequently altered.

She said that under the heading “Relevant Experience” she was awarded 12 out of a possible 15 marks. She said that the successful applicant was awarded a mark that appears to have been altered. Ultimately the successful candidate was awarded 10 marks. She said that the difference in the range, quality and extent of their respective experience was not properly accounted for by a difference of two marks.

Under the heading “Management and Organisational Skills” the Complainant was awarded 11 marks whilst the successful applicant was awarded 13 marks. She said that she had more than 20 year’s teaching experience, had worked in various roles that required organisational and management skills over that period and had significant experience in the role of Assistant Principal in the School that in itself requires management and organisational skills. By comparison the successful applicant at the time the interviews were conducted had held an Assistant Principal post in an acting capacity for a few months yet was awarded 13 marks. She said that the awarding of such marks was not in any way transparent or consistent and could not be reconciled with the wide disparity in experience they both possessed.

Under the heading “Vision and Leadership” she said that she was awarded 11 marks while the successful candidate was awarded 14 marks. She said that she had a proven track record of demonstrating vision and leadership in various roles over the course of her career. She said that these were outlined in detail on her curriculum vitae. However no questions were put to her that would enable her to develop on these skills and qualities in the course of the interview. She said that in the absence of any transparent marking system there must be a doubt regarding the fairness of the allocation of marks to the respective candidates under this heading. She said that any objective review of the respective skills and experience of the complainant and the successful candidate will demonstrate that she has been underscored under this heading. She said that the inherent bias in the process emerges here also.

Communications Skills

The Complainant said that she scored 13 under this heading while the successful candidate scored 14. She said that again the absence of any transparent marking scheme raises doubts about the objectivity and fairness of these marks. She said that the she contests the fairness of this mark as she had successfully completed a course in Christian Communications in which she was awarded a Diploma with First Class Honours. She said that in discharging her duties as a teacher and Vice Principal she had demonstrated first class communications skills that were not explored in the course of the interview.

ICT Skills

She said she was awarded 8 marks compared to 10 marks awarded to the successful candidate. She said this marking was difficult to understand. She had kept abreast of developments in new technology over the course of her career. In 1982 she had taught a course in Computer Programming on both Day and Night Courses. She had also taught Computer Studies to Junior Certificate students. She said she was adept in the use of wordprocessing, presentation and spreadsheet programmes commonly in use. She said these skills were never explored in the course of the interview. She said that she was excluded from involvement in the “school of the future project” and was not invited to become involved in any of the work associated with the development of that programme.

Capacity to Meet the Needs of the Position

She said she scored 17 under this heading. She said that the successful candidate scored a mark that appears to have been altered. Ultimately she scored 18 under this heading.

She said that the marking under this heading lacks transparency. She said that the questions that were asked to probe these qualities were vague and ill defined. She said that they were framed in such a way as to enable the panel to come to any conclusion it wished. She said that no reference appears to have been made to the experience the respective candidates brought to the interview. She said that as there was no detailed framework for scoring candidates under this heading the potential for bias was plain. Accordingly the allocation of marks under this heading requires careful justification.

Evidence of Mr Joe Reilly

Mr Joe Reilly, a member of the Respondent Committee, gave evidence to the Court. He said that he received a letter from the Complainants raising concerns regarding the filling of the post in issue. He said that the matter was discussed at a meeting of the Respondent Committee on foot of the letters. He said that the he had no recollection of the Chief Executive saying that he preferred a younger candidate for the post. He noted that the minutes of the meeting made no reference to any such comment. He said that he had never received letters before from unsuccessful candidates regarding the conduct of interviews and in that context this was an unusual event. He said that there was no one at the Respondent Committee meeting linked the appointment of the successful candidate to the School’s relationship with Microsoft.

Mr Dan Kane’s Evidence

Mr Kane gave evidence to the Court. He is a member of the Respondent Committee. He received letters from the Complainants regarding the filling of the post in issue. He also attended ameeting of the Respondent Committee at which the matter was discussed. He noted that the Teachers Union of Ireland had written to the Respondent Committee expressing its concern at the manner in which the post had been filled. He said he was aware that the complainants felt aggrieved but did not know precisely why. He said that the events took place a number of years ago and he could not remember the details of the discussions at this remove. He said that the Chief Executive of the Respondent Committee addressed the meeting. He said that he remembered him saying that 50% of the staff employed in the school were under the age of 35. He said that he did not know what he took from this observation.

Position of the Respondent

The Respondent employs almost 700 staff. It maintains that during 2007 it established approximately 100 interview boards to fill vacancies with the Respondent Committee. It submitted that since the Vocational Education Act2001 recruitment and promotion of the Respondent’s staff is an executive function that is carried out through the Human Resource Department of the Respondent.

The Respondent submits that it takes its selection and recruitment most seriously. It prides itself on its professionalism and continuously seeks to renew and develop its processes to reflect best practice.

It submits that it is widely acknowledged that interviewing is not an exact science but is an appropriate means for filling vacancies as they arise in this sector. It submits that the members of the interview board in this case had a proven and successful track record in this regard, were substantial and independent minded people in their own right and understood the needs of the school and of the position for which they were interviewing.

The Respondent denies age discrimination in the selection process. It submits that it has no control over the age profile of candidates applying for vacant positions. It submitted that the date of birth question on the application form was an oversight. The Respondent refutes the contention that the interview board would have its judgment distorted by being aware of the date of birth of the candidates.

The Respondent submitted a table of the ages of successful candidates appointed to Deputy Principal posts between 1997-2007. The table, lists 13 appointments. The ages of the successful candidate varied between 31 and 51 years. The length of teaching experience varied between 9-28 years. It submits that the successful candidates present a fair profile across gender, experience, varying teaching background and varying pathways to the promotional post. It submits that it filled 3 Deputy Principal posts in the summer of 2007. The successful applicants were aged in their 30s, 40s and 50s respectively. The Respondent submits that it is quite uncomfortable with an age comparison exercise as the age of candidates has never been a criterion for appointment to any post in the Respondent Committee’s employment. It submitted that the three competitions cited above epitomise its approach to recruitment. It submits that the aim of the recruitment process is to secure the best person for the post regardless of age.

It submits that three interviews for the post of Deputy Principal were conducted in 2007 and two members of the interview board were common to all three. It submits that the age profile of the successful candidates reveal no bias towards candidates of any age.

It submits that all candidates were treated in a similar fashion throughout the process of filling the vacancy. It submits that the board asked some identical questions and some varied questions to probe the candidates’ suitability for appointment.

It submits that the Complainants have mistakenly relied on the provisions of Circular Letter 43/00. That Circular Letter allocates 30% of the available marks for seniority. However that Letter is not pertinent to the filling of this post. It submits that thethe relevant rules governing the filling of this post allocate no marks for senority. It submits that the posts of Assistant Principal and that of Deputy Principal are very dissimilar and different criteria for appointment apply to each.

It submits that the composition of the interview panel accorded with the terms of Circular 43/00.

The Respondent denies that it excluded any vital information about the Complainants from consideration or examination during the interview and/or selection process. It submits that all relevant information supplied by the candidates prior to and during the interview was taken into account by the interview board in reaching its decisions.

The Respondent submits that probing questions were asked of all of the candidates. The core questions, agreed before the interviews, were asked of all candidates.

The Respondent denies that there was a favourite candidate from the outset or that there was an age bias in the process at any stage. It submits that the selection process was carried out in accordance with Departmental requirements. It submits that the sole objective was to select the best candidate for the post irrespective of age. It submits that the Human Resource Department handled all aspect of the process including the advertising, short-listing, collation of applications, preparations associated with the conduct of the interview and choosing the interview panel, etc. It submits that every step of the recruitment process was proper and considered. It argues that while the Chief Executive Officer has overall responsibility for the efficiency and effectiveness of all of the work of the Respondent Committee, the Human Resources functions are carried out by the Human Resource Department.

The Respondent rejects the allegation that it was influenced by a third party or that the successful candidate was advantaged in some way. It submits that many of the points raised in the Complainants' submissions have no relevance to a claim of age discrimination. It submits that no candidate was overlooked and all candidates were given equal opportunity to participate in the process. It submits that the decision to select the successful candidate for appointment was made on merit alone. It further submits that the applicants were awarded marks on the basis of the documentation before the interview board combined with the performance of the candidate at interview.

The Respondent called a number of witnesses to give evidence to the Court.

Evidence of Mr Seamus Ryan

Mr Seamus Ryan gave evidence to the Court. He said that he was employed as the Principal of the College from 2004 until 2007at which time he was appointed the Education Officer of the VEC. He said that he was asked by and gave Ms Corrigan a reference before the interviews. He said he did not give either Ms Cumiskey or Ms Horgan a reference at that time.

He said that he had no involvement in the interview process and did not find this unusual or strange. He said he was not contacted after the interviews and his opinion on who should be appointed was neither given nor sought. He said that he was anxious to introduce new technology based teaching aids to the classroom. He said that he got some money to do so in 2000. He said that Ms Corrigan came forward to offer her assistance with the project. He said that this was quite normal in schools. Teachers offered their services in areas in which they had an interest. School sports were taken by teachers with an interest in that subject. School choirs were equally taken by teachers with that interest. Technology was an area in which Ms Corrigan came forward. He said she was involved in the Committee that oversaw the implementation of the new technology along with other members of staff with a similar disposition. He said that the principal and deputy principal were members of the committee also. He said that the school engaged with private sector companies that were interested in working in the education sector. He said that he worked with a company that provided networking facilities together with Microsoft that provided hardware and software to the school. He said that this led to the school being chosen to participate in the schools of the future project. He said that as the results of this competition were being announced internationally by Microsoft he was told in advance that the school had won but was bound to secrecy pending the public announcement. He said he observed the confidentiality required of him.

He said the School was undergoing profound change and growth over the period of his Principalship. In 2000 there were 30 Teachers in the school. This had grown to 74 staff in 2007.

He said that the introduction of new technology was a whole school experience. He said that all staff members were invited to engage with it. He instanced the case of a 70- year old Cleaner in the School who learned to use email at this time. He said that the approach was to work with those who were willing to learn. He arranged classes for those who were willing to participate. He said some of the staff training initiatives worked; some did not. They abandoned those that did not and tried other approaches.

He said that in 2005 three teachers bought their own “white board” computer equipment. Ms Corrigan was one of those that did. Accordingly she applied the technology in her classroom. However she was also active in training and assisting other staff members to acquire and deploy the technology.

He said that he subsequently left the school to take up employment with the Respondent Committee as Education Officer and his involvement with the management of the school ceased. He was not involved in filling the post of Deputy Principal in any capacity.

Evidence of Mr John Grant

Mr John Grant gave evidence to the Court. He had been employed in the Dunshaughlin Community College for a long number of years, competed for the post in issue and had been unsuccessful. He was successful in a subsequent competition for the post of Principal of a School in Nobber, County Meath.

He applied for the vacant post of Deputy Principal in 2007. He was the oldest candidate for the post. He said that he had hoped he would secure the post. However he had no criticism of the process or procedure employed in filling the post. He said that he had no recollection of saying that the interview was designed for a younger candidate.

Evidence of Ms Angela Crocock

Ms Crocock gave evidence to the Court. She outlined her teaching experience to the Court and said that she had agreed to serve on the interview panel for the post in issue. She said that she formed her own opinion of the candidates on their performance at interview following a review of their respective application forms and accompanying documentation. She said that no person approached her to canvass for any individual. She said that no one indicated to her that there was a need for a younger candidate to succeed at interview. She said that the interviews were conducted in accordance with standard practice and in line with other interviews in which she had participated. She said that the awarding of marks was done by way of consensus amongst the members of the interview panel. She said that the fact that the school principal was not present was of no relevance to the conduct of the interviews. She said that she did not take detailed notes. Rather she made brief notes under various headings and referred back to them at the end of the interviews when the panel was coming to its conclusions. What notes she did take she handed up to the Chairman at the end of the interview process. She said that the notes she took had been submitted to the Equality Officer. She said that the panel chose the best candidate for the job and was guided by that consideration alone.

She said that Ms Comiskey had handled the question regarding discipline well. She said that the questions asked were not designed to facilitate any candidate but that candidates could bring their experience to bear in the answers they gave. She said that the candidates were not interrupted in the course of the interview. She said that she did not recall if the C.Vs. had been gone through.

She said that that no questions were asked regarding ICT skills. She said that this issue was addressed on the application forms and could be addressed in the presentations. She said that all the candidates had a level of ICT skills. She said that a high level of such skills would not have been an advantage. She repeated that Ms Horgan had dwelt on the relentless manner in which she would pursue the discipline issue. She said it displayed a particular view of students and a more positive rather than disciplinarian approach was what was being sought.

She said that the CEO made no reference to ICT skills in the course of the interview. She said that the two Complainants struggled with open style questions in the course of the interview

Evidence of Ms Ellen Cogavins

Ms Ellen Cogavin gave evidence to the Court. She said that she was a parent’s representative on the Respondent Committee. She said that she was approached by the applicants regarding the filling of the Deputy Principal post. She said that she was asked for her support in raising the matter at the Respondent Committeemeeting and she agreed to do this. She said she was not sure what she could do or what role she had. She said that she was trying to be supportive of the Complainants.

She said that at the relevant meeting of the Respondent Committee the HR Department and the Chief Executive addressed the members. She said that she had no recollection of any reference by the Chief Executive to the number of staff under 35 years of age. She said that she had no recollection of any reference by the Chief Executive to a preference for a younger deputy Principal.

She said she was subsequently contacted by one of the Complainants and that these issues were raised with her. She said she could not remember the precise dates or sequence of meetings. She said that she was led to believe that a number of members of the Respondent Committee had been approached and had indicated support for the proposition being advanced by the Complainant. She said that the Complainant returned to her house with two statements that were before the Court. She said she signed these documents on the understanding that others had also signed them.

She said that she was subsequently contacted by the Complainant by phone, sms and note. She said that she subsequently cut off contact with the Complainant as she did not wish to be involved further in the matter and did not wish to become involved in the then pending legal dispute with the Respondent Committee .

She said that the statement on the pages bear no relationship to her signature.

Evidence of Ms Martina Vaughan

Ms Martina Vaughan, the Human Resouces Officer of the Respondent Committee, gave evidence to the Court. She outlined her extensive qualifications and experience to the Court. She said that she prepared the documentation regarding the impugned competition. She said that the HR Department prepared the documents and Mr Kerins the CEO approved them and signed off on them. She said that this was a normal practice for posts at this level.

She said that the inclusion of the date of birth question was wrong, should not have been included and was removed from application forms for later competitions.

She said that the Respondent Committee received 10 applications for the post. 8 of them were the holders of A posts and all were shortlisted. She said the CEO signed off on the shortlist.

She said that the HR Department prepared a sample marking sheet and that this was signed off by the CEO. She said that she had no contact with the CEO regarding the draft. She said that he had not sought to influence its drafting in any way.

She said that she had no further involvement in the conduct of the interviews. In response to a question put to her she said that she subsequently made reference to an option the disappointed candidates had to make a complaint to the Equality Tribunal. She said she made this comment in the context that that was the procedure set out in the statute in such cases.

Evidence of Mr Padraig Browne

Mr Padraig Browne gave evidence to the Court. He said that having been the Deputy Principal of the School he was appointed to the post of Principal in 2007. He said that he had been involved in the delivery of ICT programmes in the school. He said that he had been the ICT Co-ordinator in the School prior to 2000. He said that Ms Janice Corrigan had been given no special access to any such programmes. He said that Mr Ryan had been present as a recorder at his interview for the post of School Principal. He said that he had not been present at the impugned interviews.

Evidence of Mr John Fanning

Mr John Fanning gave evidence to the Court. He said that he had worked in Aer Lingus for many years as an Operations Control Manager. He said that he had been lobbied by one of the Complainants to sign a letter expressing reservations about the interview process and its outcome. He said that he refused to sign the letter.

Evidence of Mr Frank Smyth

Mr Frank Smyth gave evidence to the Court. He said that he had been asked to come to the Court to give evidence on what was said at the meeting of the Respondent Committee in 2007 by the Chief Executive in the course of discussion on the filling of the impugned post. He said that he had reviewed the minutes of the meeting and confirmed for himself that there was no reference in them to any statement by the Chief Executive that he preferred the appointment of a younger Deputy Principal. He said that he had no clear recollection of the meeting and relied on the minutes in this regard.

Evidence of Mr Peter Kierans

Mr Peter Kierans, the Chief Executive of the Respondent Committee, gave evidence to the Court. He outlined his qualifications and experience in the teaching profession to the Court. He said that the filling of senior management positions in schools are amongst the most important decisions the Respondent Committee must make. He said that as Chief Executive he had responsibility for all of the work of the Respondent Committee. He said that the documentation regarding the competition was drafted by the HR department and approved by him.

He said that the interview panel received the applicants’ C.Vs. a week before the interviews. The members of the interview panel met on the morning of the interviews at 8:30 a.m. He said that they planned the interview and set out the areas of questioning at that meeting. He said that he chaired this process and the interviews. He said that he brought the candidates into the room,set up their presentations, introduced the panel and managed the protocol of the interviews.

He said that the presentations varied in quality. However it allowed the panel see the applicant on their feet. Some of them respected the time allocated while others could not manage the time adequately. He said that the interviews were conducted around the same themes though the precise questions asked may have varied depending on the flow of the interview. The areas questioned were in the form of 1) Why was one school better than another? and 2) Are schools a democracy? He said the answer to the first question relates to the quality of management and the second relates to the responsibility of management. He said that he was acutely aware that school had a profound effect on the life of a student and that management was responsible for ensuring that this was positive and effective in terms of pastoral care and academic achievement. He said that a current topic at the time was the recent passage of legislation around the area of special needs and an awareness of this was necessary to be successful. He was also conscious that the school student and catchment population was becoming multicultural and awareness of this was critical to success also.

He said that interview notes are not a record of the transaction. Rather they are a broad record of responses under various headings.

He said that the headings and the weightings were agreed and adopted by the interview panel. He said that the panel awarded 9 marks to candidates with a primary degree and masters and 10 marks to the candidate with two degrees. All candidates had a degree and a H.Dip and were allocated marks accordingly.

Under the heading “relevant experience” he said the panel was looking for experience relevant to this post and marked accordingly.

He said that the heading “Management and Organisational Skill” relates to an understanding of how the school works. He said the Deputy Principal has responsibility for the use of ICT skills relating to the preparation of timetables etc. He said that the final heading relates to areas not otherwise captured such as the significance of the multicultural nature of the School.

He said that the heading ICT relates to the quality of the presentation, the references to it on the application form and the manner in which it is necessary and or relevant to the running of the School.

He said that after the interviews were finished the panel met and agreed on the person they thought was the best candidate. He said that the marking was by way of consensus decision. He said that marks allocated to earlier interviewees were revisited after a number of interviews had been completed to ensure that a consistent standard was being applied. He said that on reflection the panel decided that the successful candidate had been marked too high under two headings and she was marked down on these. He said that the mark under “Capacity to meet the needs of position” was confirmed at 18 and was unchanged.

He said that the Respondent Committee has no function regarding the appointment of staff. He said that the 2001 Act confers those powers on the Chief Executive. He said that it had not been an issue for the Respondent Committee since the passage of the Act and accordingly he had not confronted the Respondent Committee with the allocation of powers. He said that when he became aware that there was activity on the Respondent Committee surrounding this appointment he asked the HR Department to prepare a presentation on the procedures followed for the next meeting of the full committee. He said he subsequently received a letter from the TUI querying the methods used in the selection process. He said that he was particularly concerned by this letter as it had been copied to the General Secretary of the ICTU whom he had interviewed at an earlier stage on his appointment to another post. He had also worked with him subsequently and had the highest regard for him. He was concerned that his reputation would be called into question were the accusations in the letter to go unchallenged.

He said 23 members of the Respondent Committee attended the meeting. He said it was the most difficult meeting he had ever attended. He said that 11 of them had been contacted in relation to the matter and all of them had received a letter that day regarding this issue. He said he was more upset by the TUI letter as it had incorrectly set out a marking scheme that was not relevant to the post in issue. He said that it had been suggested that Microsoft had been an issue at the interview and this was not so. He said that there was no reference to age discrimination in the correspondence.

He said that in the course of the meeting he had said things to the Union representative that he subsequently apologised for.

He said that a second letter was subsequently sent to him that alleged he said that a younger person was a more suitable appointment. He said he never said that at the meeting of the Respondent Committee and the minutes confirm this. He said that at the meeting he identified three avenues of redress available to the candidates 1) Use the appeals process 2) Refer a discrimination case to the Equality Tribunal and/or 3) Initiate judicial review proceedings.

He said that all of the members of the interview board had been given interview training. He said that Ms Gallagher who had served on the interview board had undergone such training. He said that Respondent Committee had never before had to defend an equality complaint. He said that the Respondent Committee had reviewed and was engaged in an ongoing review of all of its procedures and application forms to bring them into compliance with the law.

Referring to the interview panel he said that he was satisfied that it was a competent one that discharged its duties with care and integrity.

Referring to the interview notes he said that there is nothing sinister in the missing notes. He collected them from the panel members at the end of the process and left them on his desk whilst phoning all of the candidates to inform them of the outcome of the interview. He said that he then went on holidays. It was only when the notes were sought that he realised that one set was missing.

Dealing with the two Complainants’ applications he said that Ms Horgan was overly concerned with discipline on the one hand and with meeting the needs of the staff on the other. He said that Ms COmiskey was not abreast of the developments in the Special Needs area and did not convey a sense of understanding of how a school runs.

Referring to ICT issues he said that the panel had decided not to ask questions on this topic as the three outside candidates would be at a disadvantage relative to inside candidates.

Findings of the Court

Section 85A of the Act provides

• • (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 him or her, it is for the respondent to prove the contrary.
    
    (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
    
    (3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.
    
    (4) In this section ‘discrimination’ includes—
    • • • • (a) indirect discrimination,
            (b) victimisation,
            (c) harassment or sexual harassment,
            (d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section , is null and void.

In this case the burden lies with the Complainants to establish facts from which an inference of discrimination may be drawn. threshold is not high but it nevertheless must be met.

The Complainants have established the facts that Respondent Committee advertised and filled the post of Deputy Principal in Dunshaughlin Community College in 2007. It is common case that the two Complainants unsuccessfully competed for the post. It is also common case that the successful candidate was considerably younger than the two Complainants and had considerably less service as a teacher than the two Complainants.

The Complainants make a number of allegations regarding the conduct of the competition which they argue establishes a prima facie case of discrimination under the Act.

The Complainants submit that the application form required that they declare their age and that this was discriminatory. The Respondent Committee has acknowledged that this was wrong and should not have been included on the application form. Accordingly this point is established as a fact and is not disputed. However, the Respondent Committee submits that it had no effect on the interview process and support this by arguing that an analysis of the candidates that were successful in competitions run by the Committee vary in age indicating that it is not a factor in the selection process.

The Court examined the table submitted by both sides and has concluded that the range of age of the success candidates in a range of competitions run by the Respondent Committee indicates that age was not a factor in them. However that does not prove that age was not a factor in this case and accordingly the Court considers this matter further below.

The Complainants allege that the interview panel was too small, was inappropriately constituted to guarantee independence from the Chief Executive and was incapable of adequately distinguishing between candidates for the post.

The Court is not persuaded on any of these points. The interview panel consisted of the Chief Executive of the Respondent Committee, a very experienced member of that Committee and an experienced Deputy Principal from another School. The composition and structure of the panel complied with the requirements of the relevant Departmental Circular letter. No evidence was presented to suggest that they were not independent of each other or capable of conducting interviews at the highest level. On the contrary, two of them had sat on interview boards for similar posts on two other occasions. While they may not have been the Complainants’ preferred board it was nevertheless an appropriate and legitimate board for the purposes of this competition. Accordingly the Court rejects this proposition.

The Complainants argued that the questions asked at interview did not allow them to exhibit the experience they had acquired and that came with age.

Again the Court cannot accept this line of argument. The questions asked at interview were not identical but they did deal with common themes. The Court accepts the evidence of Mr Kierans that the purpose of the questions was to probe the candidates’ understanding of the job and the needs of the school. In that regard the Court accepts as reasonable the explanation given by him that it was on occasions necessary to rephrase questions to follow the flow of the applicants’ responses as the interview progressed rather than slavishly ask identical questions simply to ensure uniformity. So long as the same areas and topics were explored and the questions were not designed to disadvantage an individual uniformity in the construction of questions is not an absolute requirement at an interview.

What the Complainants appear to be arguing for is rather that, because of their long service, they should be advantaged at interview by being asked questions that favour staff with long service. Such a proposition would in itself be discriminatory against younger candidates in circumstances where long service was not a necessary reasonable and proportionate condition for appointment to the post. In this case the Complainants have not adduced any evidence in support of such an argument. Accordingly the Court finds no basis for upholding the Complainants on this point.

The Complainants argue that the allocation of marks was not transparent. They further argue that the allocation of marks by the interview board is by any objective assessment biased.

The Court does not accept this argument. The marking scheme is set out clearly and no credible evidence was adduced to support the contention that the weighting allocated to each heading was inherently biased. The allocation of marks under each of the headings is a matter for the interview panel. This Court has consistently held that it cannot substitute its judgement for that of the interview panel. It must confine itself to examining the structure of the process to determine if it is so designed or administered as to give rise to the possibility of discrimination on the age ground. In this case the Complainants set out their long experience in various roles as teachers and in the academic profession. However the job for which they are competing is of a different order and requires an assessment of their capacity for a senior management role Length of service and excellence in a professional post are no guarantee of suitability for appointment to a management post. The development of the capacity to fill a management post is not a function of time or service alone. And while time and service in a profession may be of some assistance in this regard more time and more service does not increase ones capacity proportionately for appointment to a management post. Accordingly a person with a short length of service in a professional capacity may have acquired sufficient knowledge and have developed the skills necessary to fill a management post ahead of a person with long service in a similar position. That is an assessment that must be carried out by the interview board appointed for that purpose and cannot be reversed by this Court unless clear evidence of bias is adduced.

In this case the evidence presented to the Court relies on the premise that service in the profession coupled with engagement with academic and other public bodies proportionately increases ones suitability for appointment to a management position. The Court does not accept this view. On reviewing the headings of the marking scheme the Court finds that it represents a reasonable attempt at identifying the qualities of a competent manager and the allocation of marks under each heading is a matter for the interview board. No evidence of age bias has been adduced to the Court and accordingly the Court does not uphold this aspect of the Complaint.

The Complainants argue that the absence of detailed notes from the interview board and of any notes from one member of the board is compelling evidence of bias in the procedures employed.

The Court has consistently held that the activities of interview boards must be transparent and that this process can be assisted by the maintenance of reasonable notes recording the deliberations of interview board. In this case the Court was provided with the notes from two members of the Board together with full details of the marking scheme that was deployed. Two members of the interview board gave evidence to the Court in the course of the hearing of the Complaint.

Taken together the Court finds that there is sufficient evidence before it to enable it to come to a considered view of the activities of the interview board. The Court finds that the explanations of the notes before it given by the board members and the broad consistency of the positions and explanations offered by them render this process transparent. Accordingly the Court does not uphold this aspect of the Complaint.

The Complainants submit that they were excluded from the ICT developments that took place in the school over a number of years and that they were thereby disadvantaged relative to younger candidates that were familiar with the technology and favoured regarding its deployment in the school.

The Court accepts the evidence presented to it that School Teachers largely self-select for extra-curricular activities. The Court knows from its own experience that Teachers with an interest in sport, music or debating tend to take students for these activities after school. Teachers interested in curriculum development offer to become involved in specialist bodies devoted to this area of educational development.

The Court notes the evidence before it that the school was introducing a new technology and was anxious to find people that were willing engage with this subject and to have them come forward to move the project on. In this case some teachers did this. Others did not. Those that did were more closely involved than those that did not.

No evidence was presented to the Court to the effect that older Teachers that offered to participate in the process were rejected in favour of younger teachers. Accordingly the complaints before the Court are mere assertion and do not amount to established facts as required by the Act.

The Complainants argue that their interviews were unfair in that they did not allow them demonstrate their extensive skill and experience.

The Court does not accept this contention. From the evidence before it the Court finds that the interviews were conducted in a standard format with the purpose of testing candidates’ suitability for appointment to a management position. The purpose of an interview is not to enable a candidate to display the skills of their choosing it is to enable the interview panel test the applicants’ suitability for appointment to the post on offer. In this regard it appears to the Court that all candidates were treated equally in this regard.

Having considered the totality of the evidence before it the Court finds that the Complainants have not established facts from which an inference of discrimination on the age ground arises. Accordingly the Court finds that the requirements of Section 85 (a) of the Act have not been met.

Determination

Taking all of the evidence into consideration the Court upholds the Decision of the Equality Officer and rejects the appeal.

Signed on behalf of the Labour Court



Brendan Hayes
23rd May, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.