EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-140
PARTIES
A Teacher
-V-
A Secondary School
(Represented by Liam O’Riordan, Mason Hayes & Curran)
File reference: EE/2013/487
Date of issue: December 2015
1. Complaint:
1.1 This complaint concerns an access to employment claim by a teacher where she outlines that she was discriminated against by the secondary school on the grounds of age and religion in relation to her application for a teaching post at the respondent school.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 19th September 2013 under the Employment Equality Acts. The complainant made additional submissions on the 10th October 2014 and the respondent made submissions on the 7th January 2015. On 4th June 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 9th June 2015. The complainant attended in person. Liam O’Riordan of Mason Hayes & Curran represented the school. The school principal and members of the interview panel and the chair of the board of management attended as witnesses.
1.3 At the outset of the hearing, I explained to the parties that I was a member of a board of management of a primary school in Dublin 8. I said that I thought it prudent me to inform the parties of this at the commencement of the hearing and also that I did not believe that it presented a conflict of interest for me. Neither party objected to me hearing the complaint.
1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
2. Summary of the complainant’s case
2.1 As background, the complainant outlined that she had returned to college to train to become a teacher. She said that she had been more mature than her classmates and had found it difficult to develop a career in teaching following the completion of her studies. She said that she was reliant on substitute and part-time work and was not able to find a permanent position. In respect of the respondent school, she said that the school favoured past pupils of the school who were new teachers. She said that she had obtained substitute work with the respondent between 2003 and 2005 and also in 2012 and 2013. She said that she had had less opportunity for substitute work with the respondent after one principal retired and was replaced by another principal.
2.2 The complainant explained that she graduated in the late 1990s and worked for a year as a resource teacher in primary schools. She had also worked in secondary schools and completed her teacher training in a different secondary school in the same county. She said that she did substitute work in five other schools in the county.
2.3 In respect of the job she sought at the respondent school, the complainant said that she saw an advertisement in a newspaper for a short-term role teaching Irish and Religion. While the term of the contract was short, she wished to apply as she had had a pleasant experience in the school some time before. The respondent had also assisted in the complainant obtaining certification once this became a mandatory requirement for teachers in 2011.
2.4 The complainant said that she was called to interview on the 21st March 2013. She was met by the current principal and introduced to the two other members of the interview panel. The principal opened proceedings by giving an outline of the school and its ethos. The complainant said that she responded that she was well aware of the school’s ethos; her daughter had recently completed her education in the school. She said that the first question asked was an open question asking to tell the panel about herself and her qualifications. She was not asked any questions about ethos and it was therefore unfair that she was given such low marks on the marking scheme completed by the panel members. She said that she would have been well able to perform well at such questions, if they had been asked of her.
2.5 The complainant said that she next answered questions in the Irish language from the religious member of the panel. No other panel member was involved for this part of the interview. She was asked about promoting the use of Irish in school and changes made to the curriculum. The complainant said that she did well in this section and scored highly. The Chair asked her about dealing with discipline and she replied by giving details of the relevant school policies. She said that she was also asked about dealing with demotivated students and she felt that this was the same thing. She objected to the poor mark for this category and that for team management and extracurricular activities. She said that she was not given the opportunity to highlight her experience of teamwork. She said that there would be little opportunity for her to undertake much extracurricular work because of the short duration of the contract. The complainant said that she was also asked about the use of resources; she said that as a substitute teacher it was often difficult to access such resources in a school.
2.6 The complainant said that she had been asked eight questions in total during the interview; three by the religious panel member and five by the chair. She said that at the end of the interview, she suggested to the panel that if she were successful she would consult with the teacher going on maternity leave so that they could coordinate their work. She emphasised that she was very motivated as a teacher and had shown this by entering the profession later in her work life. She had expected to be asked about the time she had previously worked in the school. At the end of the interview, the principal asked her whether she thought the interview was fair; she said that it was.
2.7 The complainant said that she was alarmed to learn very soon after the interview that she was unsuccessful. She said that she was informed of this in a cold letter; this led her to think that the outcome had been pre-determined. She did not think it worthwhile to agree to the principal’s subsequent offer of feedback. On receipt of the marking sheets from the interview, she was disappointed and angry by their contents, in particular the low mark on two sheets for the category of ethos. She had received the full 15 marks from one panel member but 8/15 and 10/15 from the other two members.
2.8 Concluding, the complainant said that she had been at a persistent disadvantage because of her age and that the education sector favoured new entrants who were young teachers. She was at a disadvantage to such teachers as well as to retiring teachers, who had close links to schools. She said that it was not desirable that two of the panel members were related, as they could not make independent decisions of each other. The principal and one member of the interview panel are siblings; both were in attendance at the hearing.
3. Summary of the respondent’s case:
3.1 As a preliminary application, the representative of the respondent said that the complainant had not shown any facts that pointed to discrimination on any of the nine prohibited grounds. He said that he was relying on section 77A that the claim was frivolous and misconceived. He said that it was not sufficient for the complainant to compare herself to an unspecified group of young teachers who may have taught at the school. He said that the complainant had been ranked second in the competition and deemed appointable should the first placed candidate not accept the post. The representative said that the claim was vexatious and made in bad faith. It was vexatious as the essence of the claim was outside the scope of the respondent and dealt with wider issues relating to the career development for teachers. It was made in bad faith as the complainant had made scurrilous and unsupported allegations in written submissions about the panel members.
3.2 The three members of the interview panel attended the hearing and were accompanied by the chair of the board of management. In evidence regarding the course of the complainant’s interview, the chair of the interview panel outlined that after the principal introduced the complainant to the panel members, he asked the first question. This was an open question about the complainant’s qualifications. He said that he then proceeded through the questions on the pre-drafted question sheet and in fairness to all candidates adhered to this rigidly. He later asked a question about the use of technology in Irish. He said that he closed the interview and gave candidates the opportunity to make any additional comments. He also asked whether the candidates had any questions and whether they considered the interview to have been a fair one. The chair outlined that the panel members were careful not to consult each other before completing their marking sheets; each did this independently. After comparing their results, they decided to put two candidates forward to the board of management, including the complainant.
3.3 The religious member of the interview panel said that she asked questions about the teaching of Irish and the new Irish curriculum. She also asked about promoting the language and how to make it attractive. She said that she awarded the candidate a high mark because of her command of the language and her teaching methods. She commented that the successful candidate had had a particularly excellent command of the language. The other two panel members said that while their Irish would not allow them to lead an interview in Irish, theirs was sufficient to assess the responses of candidates.
3.4 In evidence, the principal said that she asked the last set of questions, including questions in relation to ethos. She said that she had assumed the role of principal in 2010 and had developed the school’s website. She expected candidates to have consulted the website, in particular the mission statement contained therein. The identity and ethos of the school were very important. In relation to the question with the specific reference to the Catholic ethos of the school, she said that they had been advised to include this question by the management body to ensure that all candidates were aware of the school’s ethos. It was not a means of finding out candidates’ religious views. Her third question related to extracircular activity and teamwork and she did not believe that there needed to be a separate question on teamwork. The chair of the board of management said that while he was not at the interview, ethos was important to the school and always asked at interviews.
3.5 In closing submissions, the representative of the respondent outlined that the respondent had taken very seriously the task of selecting a teacher on a short term contract to replace a teacher going on maternity leave. Even though it was only a six or seven week contract, the school had advertised the post and set up a gender-balanced panel to interview candidates. Each panel member had a great deal of experience interviewing candidates and fulfilled such duties for the local Education and Training Board and for the Department of Education and Skills. The panel kept meticulous records of their deliberations and the process was entirely fair. The successful candidate was chosen as he scored the highest marks of all the candidates. Once his contract ended at the summer, the school rehired this teacher to complete the period of maternity leave during the following year. The principal emphasised the school’s commitment to training teachers and giving new teachers opportunities. The representative of the respondent outlined that the complainant had not presented facts that raised the issue of discrimination.
4. Findings and reasoning:
4.1 This complaint is an access to employment claim by the complainant, a registered and vetted teacher, who sought employment at the respondent secondary school. She challenges the interview process and says that she was discriminated against on grounds of age and religion. She challenges the manner in which the interview on the 21st March 2013 was carried out as well as the marks she was awarded by the panel members. The respondent denies the claim, stating that the complaint is frivolous and vexatious and that the complainant has failed to establish facts from which discrimination can be inferred.
4.2 In a National School v. A Worker (EDA1515), the Labour Court upheld a determination of the Equality Tribunal that the complainant, a school deputy principal, was discriminated against when applying for the position of principal. The Labour Court applied principles it had elucidated in O’Higgins v. University College Dublin [2013] E.L.R. 146 to assess whether the complainant had established a prima facie case of discrimination with regard to a recruitment and interview process:
“1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination
2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.
3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts
4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.
5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result
6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.
7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.
8.The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”
4.3 It is clear that the proper role for the Equality Tribunal in such cases is to investigate whether there is evidence of unfairness in the assessment process or manifest irrationality in the outcome. It is not the role of the Tribunal to substitute its views on the merits of candidates for those of an interview panel. In this case, the respondent has provided the documentation relating to all applicants for the teaching post. There was a conflict in evidence between the parties on whether the three questions relating to ethos were asked; I prefer the evidence of the school principal on this point as she gave a precise and clear account of what was asked and discussed. The respondent presented the question sheets used in the interviews; they provide for 12 questions. During the hearing, I commented that they were all open questions, except for the question relating to the ethos of the school. This states “We are a faith school in the Catholic tradition. Any difficulties with this?” I remarked that this was the only closed question used in the interview and asked whether it should be asked in an open way. The respondent said that they were advised to put a direct question to applicants to ensure they were aware of the school’s ethos. I also commented that the final question in the interview was whether the interviewee believed the interview to have been fair; it is difficult to see how any interviewee could answer this question in the negative. The respondent said that they had been advised to include this question at the end of interviews. The respondent did not suggest that the complainant was in any way estopped from pursuing the complaint because she had replied at the interview that the interview was fair.
4.4 The complainant states that the interview process was tainted by discriminatory treatment on the basis of age and religion. Having reviewed the documentation submitted by the parties and their oral evidence, I find that there are no facts from which discrimination can be inferred. There is no evidence of unfairness in the interview process or of irrationality in the panel’s decision to rank another candidate as their preferred candidate and to rank the complainant as appointable but in second place. The complainant states that an inference of discrimination can be drawn by the posting of the letter saying that she was unsuccessful so soon after the interview. Given that the post was a seven-week contract and that only three candidates attended for interview, I do not believe that such an inference can be drawn. In conclusion, I hold that the complainant has not established a prima facie case of discrimination, i.e. facts from which an inference of discrimination can be drawn.
4.5 For the sake of completeness, I find that the complaint was neither vexatious, nor frivolous. While I have sympathy for the difficulties and frustration felt by the complainant in advancing her career as a teacher, I find that the recruitment process adopted by the respondent was thorough, transparent and not discriminatory on the grounds of religion and age.
5. Decision:
5.1 In accordance with section 79 of the Employment Equality Acts and section 41(5) (a) (iii) of the Workplace Relations Act 2015, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that she was subject to discriminatory treatment on grounds of age or religion.
______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
December 2015