DEC-E2015-008

Equality Officer’s Decision No: DEC-E/2015/008

PARTIES

Máire Uí Ciaráin

Represented by Diarmuid Fossett BL,

instructed by Sherry McCaffrey Solicitors,

Board of Management Loreto College Crumlin

Represented by Mason Hayes & Curran Solicitors.

File No: EE/2012/300

Date issue: 24 February, 2015

Employment Equality Acts, 1998-2011 – Sections 6, 8 &b 77 – promotion – discriminatory treatment – gender – age - timelimits

1. Background

The Complainant is employed as a Teacher in Loreto College Crumlin. She has claimed that she has been discriminated on grounds of gender, age and marital status.

The complaint was referred under the Acts to the Director of the Equality Tribunal on 24th May 2012. In accordance with his powers under Sec 75 of the Act, the Director delegated the case on 11th November 2014 to me Eugene Hanly an Equality Officer, for investigation and decision. Submissions were received from both parties. As required by Sec 79(1) of the Acts a hearing was held on 16th December 2014.

In reaching a decision I have taken into account the written and oral submissions of both parties.

2. Summary of Complainant’s position

The Complainant is pursuing discrimination on gender, family status and age grounds in promotion, training, conditions of employment, harassment and victimisation.

The Complainant accepts that she must establish a prima facie case. The probative burden then shifts to the Respondent. The case of Mitchell v Southern Health Board [2001] ELR201 concluded that if the Complainant proves the primary facts upon which they rely in asserting discrimination then they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proof shifts to the Respondent to prove that there was an absence of discrimination. This test has its basis in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. The wording used in the Regulations is derived from Directive 97/80 EE (The Burden of Proof Directive).

In Dublin City University v Horian Determination No: EDA 0715 the Labour Court had little difficulty in shifting the evidential burden to the university having found that the complainant was better qualified on paper than her comparators, all of whom were appointed whereas she was not.

The Complainant, in her workplace relations Complaint form outlines 3 interviews where she was an unsuccessful candidate. In all 3 cases, despite being the most experienced, qualified and longest serving and holding posts that were historically the pathway to promotion, the Complainant was passed over and the posts given to 2 younger women and a man. The Complainant has received correspondence from the Chairperson, under the Data Protection Access request (attached).

In A Named Employee v Tesco Ireland DEC-E2006-031 the Equality Officer upheld a complaint of victimisation as a result of the company interviewing the complainant for the post which had already been filled and by setting unreasonably high targets for the complainant.

In the case of the first interview the principal's marking sheet is signed and dated the 8th April 2011 but no mark was recorded for the first category. A menu of questions is included but it doesn't give the precise questions the Respondent was asked.

There were no criteria for selection for Second Interview. The sheet is completed by each interviewer with the marks allocated included. Most of the categories for the second interview differ from those of the first. No questions or menus are included.

In relation to the Third Interview the Chairperson states "...the interview panel agreed a total mark under each heading for each candidate. There are no notes retained from this interview panel. It should be noted that I personally did not assign marks to either candidate following this interview." She includes a single sheet relating to this interview. Written on the top is 'Agreed total' and a mark is assigned opposite each heading with a total at the end. The sheet is not signed. There is no reference to criteria for shortlisting. No questions or menus are included. In the letter from Sr. E dated May 10th 2012 there was confirmation that the same questions were put to all candidates, with the possibility of some additional questions arising from the particular CV of each individual candidate. The Complainant was frustrated in her interviews as no meaningful questions were asked arising out of her wide range of experiences and the questions asked were structured to ensure that she could not expand about her experience or vision for the school and when she tried to introduce this into her answer she was interrupted and a new question posed.

In Ronaldo Munck - v - NUI Maynooth DEC-E2005-030 the Equality Officer found irregularities and inconsistencies in the selection procedures together with remarks about Irishness and the absence of interview notes established a prima facie case of discrimination.

In Flexo Computer Stationery Limited v Kevin Coulter (October 2003) the Labour Court stated that “the absence of a coherent and objective basis for a particular selection can be symptomatic of discrimination and could constitute a fact upon which discrimination may be assumed”.

By 2011, in addition to being highly qualified and to having many years of experience in the broad education field, the Complainant had worked in three roles/positions which were recognised as a clear pathway for promotion to senior management but in two cases less qualified/experienced women were promoted and in the third case a less qualified/experienced man was promoted. The Employment Acts 1998-2004 Section 6 Discrimination is defined as “a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified.”

Between 2005 (when the Principal joined the staff as an external appointee) and 2011 the Complainant experienced treatment that was different from that of others which can be classed as victimisation, discrimination and harassment. When the Principal was appointed in 2005 the Complainant requested that the Irish version of her name be used in all matters relating to her work as this was what she was known as with the DES registration, passport, driving license etc. The Principal opposed this request and continued to use the English version of her surname. The victimisation, discrimination and harassment were particularly acute from 2009 onwards. On the Complainant’s return to the school in 2009, following a secondment, she was met with open hostility from the Principal and made to feel totally uncomfortable and unwelcome. As a result the Complainant began to suffer stress which manifested itself in the form of a skin condition from which she continues to suffer.

Despite the Complainant’s experience in providing CPD to staffs in other schools she was never allowed have any input into staff development in her own school. She was consulted privately by the Principal on numerous occasions in relation to planning usually seeking information/advice for the purpose of her own personal upskilling/decision making whilst unrealistic and impossible demands were made on the Complainant with regard to her workload both in relation to HSCL and in relation to her Post of Responsibility. The list of duties attaching to her post was unrealistic and unachievable. There was undue monitoring of her work as HSCL Coordinator. She was obliged to account for and document how she spent every minute of her time. She brought this to the attention of the Principal on a number of occasions stating that she could not physically continue to give almost all of her out of school personal time over to school related tasks but was told that the Principal required this information and that she ‘enjoyed reading it’. However, the person who held this position for many years prior to her appointment was not subjected to these demands.

In Tooling and Moulding [2005] ELR 305 Lavan J. referred to the definition of bullying and expressly applied it to the plaintiff’s evidence. “From the evidence of the plaintiff, who states that this treatment made him feel humiliated, in conjunction with the Code of Practice definition of bullying, the only conclusion that can be reached is that the treatment does amount to bullying”. The Complainant submits that the Principal felt threatened by the Complainant’s qualifications and experience and sought to promote a younger candidate solely on the basis of age.

The Code of Practice on Guidance on Prevention and Procedures for dealing with Harassment at Work under the Employment Equality Act 1998, as provided for by Section 56 of the 1998 Act, outlines the meaning of harassment. It also outlines best practice procedures for dealing with claims of harassment as well as guidance on preventing harassment occurring in the workplace at all.

In March 2009 the Complainant’s school had just completed a review of posts of responsibility, adhering to prescribed guidelines. However, when the Principal learned that the Complainant would be returning to school in September 2009 she broke with proper procedure, omitting the Complainant – the second most senior teacher, after Principal and Deputy – from the process of post allocations. She wrote letters of offer to all relevant teachers, having now assigned the planning post at AP level to the Special Duties post holder who was number 16 in seniority and younger and less qualified than the Complainant. She still made no contact with the Complainant. Some days later the Principal telephoned the Complainant and tried to pressure her into taking on the leftover duties. These duties are those assigned to the last and most junior appointee to a post of responsibility at Special Duties level and should the Complainant assume responsibility for such duties it would represent complete humiliation for her both personally and in the eyes of her colleagues. The Principal threatened the Complainant with exclusion from remaining a post holder if she did not accept. The Complainant pointed out the impropriety of her earlier actions and three days later she came back to her granting her the AP position in planning. Again, the Principal broke with protocol and unilaterally altered the work concluded and signed off on by the review committee and which she had previously accepted, and created a second post in planning to which she appointed the Special Duties post holder who was number 16 in seniority. Section 74 (2) of the Employment Equality Acts 1998-2004 defines victimisation as dismissal or adverse treatment as a reaction to complaints of discrimination. Section 8(7) gives a subjective view of harassment.

In the list of teams displayed on the staff notice board in September 2009 the title of ‘coordinator’ was removed from the Complainant. Throughout the first term the Complainant attended the planning meetings as a member of the team but was completely marginalised and side-lined.

In the 2010-11 school year the Principal repeatedly failed to support the Complainant’s work making it appear that the Complainant was not carrying out the duties attaching to her post. The Complainant brought this to her attention on a number of occasions but the pattern did not alter.

On the 19th November 2010 the Principal invited the Complainant and the junior planning post holder to wait back at the end of a planning meeting. The Principal made a suggestion that the DEIS area of planning be taken over by the junior member, a proposal which would undermine and side-line the Complainant. The Complainant emailed the Principal that evening in relation to this incident. In her acknowledgement of receipt of the Complainant’s email she offered no defence of or explanation for her actions.

Since September 2011 the Complainant has been completely side-lined in her planning post although she is the Chairperson of this team.

Family and Gender Status:

In O’Donnell and Others v The HSE DEC-E2006-023 the Equality Officer found that the nurses’ roster indirectly discriminated against the complainants on gender and family status as it required them to work seven consecutive days in a row and on occasion thirteen out of sixteen days which meant that they were away from home for thirteen and a half hours per day for continuous periods.

During a number of years when the Complainant job-shared she was given an unfair and non-family friendly timetable. These timetables in no way fitted with trade union requests to managements for timetables for jobsharers that would be in keeping with the spirit of job-sharing.

In Inoue v NBK Design Limited [2003] ELR 98 the Court determined that it may be inferred that the abolition of part-time jobs would impact disproportionately on women rather than men and that the complainant was not able to work full time not because she was a woman per se but because she was the mother of a school going child of which she was the primary carer - indirect discrimination by reference to gender, family status and marital status. The unrealistic workload of the Complainant discriminated her in such terms.

Age discrimination

The Employment Acts 1998-2004 S6 Discrimination is defined as “a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified.” The Complainant submits that she was treated unequally and unfairly and discriminated against in comparison to two younger workers on the basis of her age and against a man based on her gender.

During the Complainant’s absence from school in ’08-’09 a relatively junior member of staff (number 16 in seniority) was assigned the Complainant’s post in planning in a temporary capacity. Up to 2008 no organised time was assigned to planning and no provision was made for collaboration with others despite the role requiring collaboration. However, when the Complainant’s replacement was appointed, a much younger woman, a planning team was established and a class period per week was built into the timetable of the members of the team to facilitate meetings. The Principal also made provision for wider consultation on a number of occasions during the course of the year.

The model of DEIS planning outlined by the Complainant to a gathering of in-service providers in Port Laoise Education Centre in 2010 has been taken on board and was delivered to schools in the 2011-2012 school year but the work that the Complainant did towards its implementation in her own school has been undone by the acting Principal and younger staff have been sent to some of the coordinators’/planning in-service which the Complainant has been deprived of. Since 2009 the Complainant has not been informed of the dates in relation to CPD training and accordingly has been victimised by being deprived of this in-service training and humiliated in front of her peers as they observe that she has been stripped of any leadership role in planning.

When the DP position was first advertised the then Principal announced to the staff that she would be happy to offer advice to applicants in relation to the role but when the Complainant asked to speak to her she responded by saying “When I made that offer it wasn’t meant for someone like you. -------This was meant to help younger members of staff who wouldn’t have your experience.” The Principal did not offer any advice.

The Employment Acts 1998-2004

S 7 (a) defines harassment as follows

(i) References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds

The Complainant cites the 2nd May 2012 as the date of last discrimination on her application as this was the latest planning meeting of the school year where she was again sidelined and discriminated against.

In The Shelbourne Hotel (DEC-E2004-75, 20th December 2004) the Equality Tribunal determined that, in identifying the latest date upon which an act of discrimination and/or victimisation occurred for the purposes of the six month limitation period, the purposive approach, rather than the literal approach, is the correct one to adopt. In other words, where there is ambiguity in the matter, the limitation period is to be interpreted as widely and liberally as can fairly be done

Background Qualifications:

The Complainant held a Post of Responsibility at Assistant Principal (AP) level in the area of School Development Planning since 2003 taking over from her predecessor who was appointed Principal. The title assigned to the role was School Development Planning Coordinator. This post allows great scope for creativity and dynamism and involves working at a whole-school level on the issues and the opportunities that are at the core of the functioning and the business of schools. In a large percentage of cases holders of such a post are later promoted to senior management positions, as indeed was the Complainant’s predecessor in this post in her own school.

The Complainant was awarded a post-graduate Diploma in School Development Planning with high honours in 2006. A very large percentage of persons who hold this Diploma have been promoted to senior management positions also (by 2008/2009 approximately 70% had been promoted to senior management or equivalent positions)

In 2007 the Complainant graduated with a 1st Class Honours Master’s Degree in Education. Themes such as the cultivation of autonomous learners and school self-evaluation were central planks of her study. These themes stand at the very heart of the debate on education in recent years and up to the present today.

In the 2008-09 school year the Complainant was appointed to a seconded position with the School Development Planning Initiative – a national initiative under the Department of Education and Skills whose remit was to prepare the membership of the teaching profession for greater self-reliance at local level and preparedness to adapt to a changing culture within schools and the way schools work. This position involved travelling to schools to provide in-service to staffs. It also afforded the Complainant the benefit of being centrally involved in the education debate and it offered her the opportunity to be present at discussions and presentations conducted by leading educationalists from both inside and outside Ireland. At the time of the winding down of the School Development Planning national service to schools in 2009/10 only four members of the seconded team were not already School Principals. The Complainant is now the only one of those four who has not since been promoted to a senior management position. The remaining three are also women of a similar age group to the Complainant.

In 2009 the Complainant was appointed Home School Community Liaison Coordinator.

In the late 1980’s and in the 1990’s the Complainant was Principal teacher on summer courses in the Gaeltacht.

The Complainant holds a 1st Class Honours post-graduate diploma in Applied Linguistics and Language Teaching from TCD and continues to take short courses in relation to various aspects of the field of education.

The Complainant is also a member of the executive of the Network of School Planners, Ireland, and an associate member of the PDST, the current and much reduced provider of professional development for teachers at both primary and second levels.

Response Chairperson of the Board of Management,

It is noteworthy that the Chairperson of the Board of Management of Loreto College, Crumlin, has been in the role of Chairperson since the inception of the Board in 1987. This means that Sr. E R has an intimate knowledge of Loreto College, Crumlin and has been in a highly influential position vis-à-vis the operation of this school for a very long period of time leaving her in a very strong position to shape its direction and development over the years.

Matters that occurred pre 2011 while raised at the hearing and in submission were deemed out of time and will not be included in this summary.

First Interview

The 5 person Selection Committee consisted of the Chairperson of the Board of Management (BOM) of Loreto College, Crumlin who works in the Loreto Education Centre in Foxrock; the outgoing Loreto Education Development Officer who was about to retire from the Loreto Education Centre in Foxrock; the Principal of Loreto College, Crumlin who was about to join the staff of the Loreto Education Centre in Foxrock replacing the outgoing Loreto Education Development Officer; the Principal of Loreto Abbey, Dalkey; the Principal of another school located close to Loreto College, Crumlin and who is a friend of the Principal of Loreto College, Crumlin.

(The 2 nominees of the Loreto Education Trust are current or former members of that Trust).

She does not feel confident that this board was independent or objective as she is aware that numerous appointments in Loreto schools are made on the basis of pre-selection and this fact has been confirmed to me by one of the successful candidates.

The negative body language of the Principal, B.C. during the course of this interview was extremely distracting and threatening. Because of the seating arrangement of the members of the interview panel this would not necessarily have been perceptible to the other members at the time.

Shortly after the interview her views were made known to the Principal that the interview was a charade.

A comparison between the Agreed Shortlisting Criteria (Appendix 1) and the categories in which questions were actually asked in the first interview (Appendix 2) shows a complete mismatch between the two. The Agreed Shortlisting Criteria are laudable and in keeping with the actual Application Form. Appendix 2, however, shows clearly that 3 of the 7 areas that comprise the interview relate openly and exclusively to discipline, viz. Categories 1, 2 and 4. Discipline manifested itself again in Categories 6 and 7. Discipline is commonly perceived to be part of the Deputy Principal’s role (Category 6) and even Category 7 [Style and Quality of Leadership (demonstrated during the interview)] was reduced to questioning about conflict and discipline. All this is completely disproportionate, unbalanced and out of touch with what is required in order to run a modern day, progressive and dynamic school. It does not represent the norm in interviews for Deputy Principals. It was so designed in order to suit a person who was working within the narrow and restrictive role of the classroom and/or as a year head, and to militate against anyone who was in an alternative and dynamic role which would, in fact, be developmental and challenging yielding candidates who have a much broader view and understanding of and vision for education, as in my case.

In Category 2 (Capacity to Manage Conflict/ Self-Knowledge) she was further discriminated against as she was asked to give an example of a situation in which she had dealt with conflict within the school in the recent past. When asked for clarification as to what was meant by the ‘recent’ past she was told that it had to be within the past year. This question was clearly designed to discriminate against her because, in her role as HSCL Coordinator she did not deal with or work with students directly as the selection committee was well aware.

Further, skills in discretion, diplomacy and in pre-empting conflict are paramount in the role of HSCL. She would contend that such skills are acutely needed by those in management positions also, making me all the more suited to the role. On the other hand, the question was suited to the successful applicant who was working in the classroom and in a year head role at the time. Although she had worked as a year head in the past this was not in the ‘recent’ past as defined by the interviewer. She would further contend that it is not appropriate to couple ‘self-knowledge’ with ‘capacity to manage conflict’ as they are very separate entities. Her skills in self-knowledge are also very high.

She was an extremely strong candidate for the position advertised. Category 3 is one in which she had enormous experience. This area includes Timetabling. In September of this year, one week after classes commenced, the entire school timetable had to be scrapped due to errors and a whole new one devised. Other very serious errors have been made resulting in unacceptable consequences for some members of staff and a negative impact on student education.

An objective assessment of the 7 categories shows them to be acutely restrictive, lacking in vision and deeply unimaginative. The completely disproportionate weighting given to discipline / conflict etc. is totally inappropriate. Seriously important questions such as asking candidates to outline what they bring to the table for this job, what their past experience has been and how they could apply what they have learned in order to develop a better school, what their vision for the school is, how they would take it forward since it is a school that is in need of turn around, examples of having worked in a leadership role with both students and adults, of having engaged, inspired and motivated adults to take on new challenges etc. – in short, the type of questions normally asked in interviews for management positions - were completely omitted. Areas of key importance such as these, which are among her strengths, were not touched on and if she tried to branch into such areas she was immediately stopped and another restrictive, narrowly focused question was asked.

She contends that the areas and the questions in the actual interview were specifically designed to facilitate the appointment of the young pre-selected candidate and to discriminate against her on the basis of age.

There is a complete lack of clarity and transparency surrounding the awarding of marks for determining how candidates would be shortlisted for interview.

Comparing the internal candidates who were called for interview with those who were not, only one single criterion separated the two groups and this was the holding of a ‘post-graduate qualification’. Those not called did not have a post-graduate qualification. It follows therefore that ‘Post-graduate Qualification’ was a dividing factor and was perceived by the Selection Committee to be of key importance in the filling of this position. The criterion actually states “Relevant Post-graduate qualification”. In point of fact, at the time of interview she was the only internal applicant to hold “relevant” post-graduate qualifications (she actually held two). Some external applicants of whom she was aware and who were shortlisted for interview were also holders of “relevant” post-graduate qualifications at the time of application. It follows therefore that “relevant” post-graduate qualifications’ were a necessary requirement for her and for external applicants but not for the internal applicants who were called for interview.

The closing date for receipt of applications was Friday, 25th March 2011. It is absolutely not credible that completed Application Forms had not been examined by the 29th March when the Selection Committee met, contrary to the assertion made by the Respondent. When a position has been advertised it is normal practice to open letters of application as they arrive. The Respondent states that it was agreed that no member of the Selection Board was related to or had a relationship with an applicant which would prevent them from participating in the Selection Board. She contends that the Principal of Loreto College, Crumlin, had established a pattern of behaviour with regard to her over a prolonged period that indicated a very strong bias against me and accordingly, in her view, it was not appropriate for her to be a member of the interview board.

Some documentation states that 8 people were interviewed; other documentation indicates that the number was 7.

Response to points made by the Complainant about the interviews:

Nobody is suggesting that the position of Deputy Principal had actually been filled before the selection process. However, she is saying categorically that the person to fill the position had been identified and agreed by those in a position to determine the outcome, in advance of the selection process. All steps taken subsequently were taken within a framework that would ensure that this plan would be brought to fruition.

As for the statement of the Respondent that, had this been the situation, “this school with serious financial pressures would scarcely have engaged in an expensive process of advertising, hire of hotel rooms, expenses of the selection committee etc…” the facts are that schools are legally obliged to advertise publicly and to conduct interviews. The hire of hotel rooms is at the discretion of the selection committee and doing so may be perceived by that committee as adding a veil of transparency to proceedings.

She refers to the following sentence and quotes: ‘Neither did the selection committee set “unreasonably high standards” for the Complainant.’ She didn't know where this is coming from. She never stated that the selection committee set unreasonably high standards for her. Quite the contrary – in her view the selection committee set unreasonably low standards in this and its two remaining interviews. She expects and demands very high standards of herself and of others. However, she considered the standard of much of the questioning in all of the interviews to be rather poor, lacking in challenge and vision, and very blinkered in perspective. It was not at all in line with the type of questioning she would expect from a selection committee that would be seriously interested in ensuring that the school would have the type of leadership that would seriously engage with developing and running a good, soundly based, progressive school.

In her Introduction the Respondent alludes to the falling numbers in the school over a number of years. This has worsened very considerably in the current academic year with a drop of 26% in the 1st Year intake as compared with that of the previous year. This situation is not reflected in other schools in the area. This is a school that is in need of being turned around in very many respects. The interviews were rather disappointing in the context of the reality of the school.

It is clear that the mark in this category was omitted initially and that the total on this page was 73. We do not know when the mark was added and the total changed to read 81 Neither was the signature of this interviewer added at the time of marking, it would appear, as the ink used in the signature is quite different from that on the remainder of the page. The same is true of the signature of the independent advisor and her marking sheet.

In the Minutes of the Meeting of the Selection Committee the latter part of Point 8 (i) states that “[T]he same questions must be asked of all candidates.” However, (this document) which contains questions for the second set of interviews includes a handwritten statement from the Chairperson of the Board which reads “Same for all unless specific issues arise from CV.” As a candidate who has a particularly strong CV it is noteworthy that neither in the 1st nor the 2nd interviews was she asked a single question based on her CV and at each and every attempt made by her to draw on material outlined in her CV/application form she was blocked. Section 4.9 of this document details the reference to her CV/application form that occurred in the 3rd interview.

The Respondent states that the posts of Home/School/Community Liaison (HSCL) Coordinator and of School Development Planning (SDP) Coordinator are comparatively new in the Irish education system and does not accept that they have been “historically the pathway to promotion.” TheHSCL position has been in existence since 1991, Planning Coordination since 1998. Loreto College, Crumlin appointed its first lay Principal in 2002. This was typical of many religious schools. The holder of either one of these posts featured strongly among appointees – in fact, her predecessor in the planning post was the first lay principal appointed in Loreto College, Crumlin. To hold both positions put any candidate in a very, very strong position for promotion. Not only did she hold both positions but in addition she holds a Post-graduate Diploma in Planning from 2006 (a diploma which featured enormously in promotions) and she had the invaluable experience of spending a year on secondment working with the very highly regarded School Development Planning Initiative (2008-09). Further to that she holds a 1st Class Honours Master’s Degree in Education (2007).

By mid-2009 approximately 70% of teachers who had taken the Post-graduate Diploma in Planning and who were not already in senior management positions, had been promoted to such a position.

All teachers who were seconded to work with the School Development Planning (SDP) Initiative for any period throughout its existence and who subsequently left this secondment have been promoted to senior management positions with the exception of myself alone. Many of them were of a similar age bracket to me when they were appointed. From among the 4 of us who were the most recent to leave, as the SDPI service was being wound down, the other 3 have been appointed to senior management positions.

The fact that the HSCL position exists in some schools only, serves to make the experience all the more unique and valuable leading to a greater demand for people with this experience for appointment to management positions, and particularly so in the case of disadvantaged schools such as this where the HSCL Coordinator has gained invaluable experience from working in this role. Not only that but I was not asked a single question about my experience in the role nor allowed include any such references in my responses.

Her role as SDP Coordinator did NOT arise from the tasks assigned to her Post of Responsibility (POR). Prior to 2002 the duty attaching to her then POR was management of the school’s shop. The newly appointed Principal (2002) who vacated the planning post invited me to take it over stating that she was the most suitable person on the staff to carry out the duties attaching to the role on the basis of overall suitability which included her ideas and vision, her organizational and leadership skills, her ability to relate to others, engage their cooperation and get things done. Being aware that the post would be quite demanding if carried out properly, she requested time to think about it. She was granted a year – during which she carried out another role – hence the reason she assumed the planning role in 2003. This post has been the most prized POR for many years but she was the most junior Assistant Principal in Loreto College at the time of her appointment to the role.

Regarding the statement by the Respondent that seniority is NOT a determining factor in appointments at Deputy Principal level the pertinent question is Why isn’t it? No ruling exists to prevent a selection committee from ranking seniority among its criteria or including it for marking. The selection committee determines the criteria. Omitting seniority as a criterion facilitates the decision of certain school managements / selection committees to promote people on the basis of youth and to discriminate on the basis of age, as in her case. For many years she has been the named person in charge in the school on occasions when the Principal and Deputy Principal are absent. Seniority is one of the main factors on which the invitation to be in charge is based. Suitability is clearly another. This fact demonstrates both her suitability and the confidence of management in older/more senior teachers to be the safe hands in which to leave responsibility for the school in their absence. How then can a selection committee condone the exclusion of seniority from its selection criteria and from the categories to which marks are awarded and discriminate on the basis of age? It must be noted that in schools with a staff of up to 17 teachers’ appointment to the position of Deputy Principal is on the basis of seniority alone (unless there is a clear case of unsuitability). This fact demonstrates that seniority which automatically implies experience is a very important factor in the selection of persons for senior management positions. How then can schools of 18+ teachers justify affording no weighting at all to seniority and disregarding it completely?

There is evidence of the Principal, B. C. having used seniority as a criterion for certain appointments when this suited the outcome that she wanted. The following is one such example: in June 2010 the present Acting Principal, J.D., was appointed by the Principal, B.C., to the role of Examinations Aid. This is a role that is carried out by a member of staff in each school for the duration of the State Examinations and is paid for by the DES. When the Principal announced the name of the person appointed at a staff meeting she added that she wished to clarify that the selection was made on the basis of seniority!

Age: The Respondent states that no candidate was asked to state his/her age and of course this is true. She fails to state however that Page 2 of the application form seeks information about applicants’ qualifications and part of this information asks for ‘Year of Graduation’ which in her case, for her first degree, is 1974. Page 3 requires details of all teaching and relevant experience with dates.

She was certainly discriminated against on the basis of her age.

Qualifications:

She is much more qualified and she has an enormous amount more relevant experience than the successful candidate, J. D.

Although jobs were quite scarce in the mid-seventies when she qualified she secured a permanent position at interview during the course of my Post-Graduate Higher Diploma in Education year to be taken up immediately after graduation. For the whole of her teaching career she has worked in permanent positions. The successful candidate was appointed to a permanent teaching position only 6 years prior to her appointment as Deputy Principal, a role which was immediately transformed to the role of Acting Principal.

The Master’s degree held by the successful candidate is not in an area that is “relevant” to school leadership/management. At the time of appointment she did not hold any relevant post-graduate qualification. She commenced the Diploma in Educational Management course in Autumn 2010, and the course ran to the end of May 2011. Applications for the post of Deputy Principal were made in March 2011 with interviews held in early April. The selection criteria state “Relevant Post-graduate qualification” and while there is no transparency around the marks awarded by the Selection Committee in choosing candidates for interview, it is certain that at the time of interview the successful candidate was not the holder of any “Relevant Post-graduate qualification.”

She also asserts that the successful candidate was advised by those in a position to determine the outcome of the interview process to take this course so as to enhance her CV in order to facilitate her appointment and in an effort to satisfy the criterion “Relevant Post-graduate qualification.”

As pointed out above she was the holder of 2 relevant post-graduate qualifications at the time of interview. Firstly, in addition to holding a Diploma in Applied Linguistics, she holds a Diploma in School Development Planning and a Master’s Degree in Education. The Planning course encompassed a very substantial input in the area of school leadership and management as school planners were being equipped to carry out a significant leadership role in schools. Not only that, but during the course of her secondment in 2008-09, in conjunction with her colleagues who were seconded, she actually taught the candidates taking the Post-graduate Diploma course in that particular year. In 2009-10, although now back in school and having limited time available, She again had an involvement with the delivery of this Post-graduate Diploma in Planning. Further, in 2008, 2009 and 2010 she was involved together with my colleagues on the School Development Planning team in the delivery of the planning course for teachers held each summer in DCU and known as the ‘DCU Summer School.’ She continues to be an associate member of the current in-service provider, PDST, where she is part of the Leadership and Planning Advisory Team.

Secondly, the Respondent is well aware that her Master’s Degree (2007) for which she was awarded 1st Class Honours was the culmination of an engagement with a four year Research and Development Project carried out by NUI Maynooth. In the third year of this project (2005-06) she gained a post-graduate diploma in Education (totally separate from the planning diploma for which she also studied during the same year) which she did not take up due to her decision to proceed to take a Master’s degree. This means that she spent 4 years engaging in an in-depth study and examination of all aspects of schooling including leadership and management roles. It was, in effect, a four year in-depth engagement with continuous professional development (CPD). She was equipped to a very high level to take forward school self-evaluation, the development of literacy and numeracy, the promotion of teaching and learning, engagement with working collaboratively as a staff, management of staff, etc. etc. – in effect, every single aspect of running an effective and dynamic school – all of the areas that are on today’s government agenda for school improvement and that schools are being asked to engage with, and more.

In addition to her qualifications she has a wealth of invaluable experience that makes me highly suited to a leadership/management position:

• 
  In 2004 she took 2 of the 4 modules of the Diploma in Management in Education in Trinity College. This represented a further in-depth engagement with CPD and coincided with her work on the Maynooth Research and Development Project.
  She has taken numerous short courses in all sorts of school related areas throughout her career.
  She has worked for short periods in French schools thereby gaining a valuable insight into the workings of other school systems.
  She was part of a week-long study group to visit London with the SDPI in the 2007-08 school year where those involved were afforded an in-depth insight into schooling and the education system there.
  She has worked as a Principal on Gaeltacht summer courses in Corca Dhuibhne, Kerry Gaeltacht, for a period of 10 years. This role requires enormous organisational and managerial skills since the Principal has full responsibility for every aspect of the course. It requires working from morning until 11pm 7 days per week and being on call during the night should an emergency arise. It requires responsibility for health and safety of teachers, of students (all are away from home), responsibility for accommodation – residential and classroom, for dealing with DES inspectors and Roinn na Gaeltachta inspectors etc. etc. This means that I was extremely highly qualified in Category C of the Shortlisting Criteria “Relevant Leadership and/or Management Experience, knowledge & skills.”
• (NOTE: I contend that Category 7 was rendered null and void by including the words demonstrated during the interview with the substantive question “Style and Quality of Leadership.” How can style and quality of leadership be demonstrated during interview? These words are included in order to enable the interview board to disregard the track record and experience that a candidate such as myself has built up – showing absolute proof of ability to lead. The category as operated by the interview board is farcical but represents incontrovertible evidence of the underhand plot that was afoot).
  She has worked as a supervisor of teaching practice of Higher Diploma students for Trinity College.
  She has given presentations on various school related topics to teachers attending the DCU summer schools in the years 2008, 2009 and 2010.
  She continues to be an associate member of PDST and since her return to school in September 2009. She has given in-service in some schools and she has participated in some Leadership and Planning meetings.
  She is a member of the executive of the Network of School Planners, Ireland (NSPI).
  She has marked examination scripts and carried out oral examinations in the languages for the DES over many, many years.
  She has been a member of interview boards and she has been Chairperson of the Parents’ Association of my children’s primary school.
  She has been a member of the Central Executive Council of the ASTI and a Branch Chairperson for many years.

With regard to this vast range of invaluable experience in the case of which no other internal candidate had anything comparable, she was not asked a single question at any of the 3 interviews nor was she permitted to include any such material in my responses. Questions in all 3 interviews were confined almost exclusively to discipline in one form or another designed to achieve the desired outcome of promoting pre-selected candidates.

In the first interview, clearly she was discriminated against on the basis of age.

Second Interview. May 26, 2011

This time the 5 person Selection Committee consisted of the Chairperson of the Board of Management (BOM) of Loreto College, Crumlin who works in the Loreto Education Centre in Foxrock; the outgoing Loreto Education Development Officer who was about to retire from the Loreto Education Centre in Foxrock; the Principal of Loreto College, Crumlin who was about to join the staff of the Loreto Education Centre in Foxrock replacing the outgoing Loreto Education Development Officer; the Principal of Loreto College, Balbriggan who is also the Chairperson of the Loreto Education Trust, (The second nominee of the Loreto Education Trust is a current or former member of that Trust), and the Principal of another school located very close to Loreto College, Crumlin, who is a friend of the Principal of Loreto College, Crumlin.

She does not feel confident that this board was independent or objective as she was aware that numerous appointments in Loreto schools are made on the basis of pre-selection and this fact has been confirmed to her by one of the successful candidates.

The procedure surrounding this interview raises worrying questions and points up a complete lack of transparency. Since she was given no date for a meeting of the Selection Committee it follows that the Selection Committee never met. There is no reference to criteria for shortlisting. The Respondent states “Since both candidates were being called for interview, there was no need to draw up criteria for selection for interview.” On what basis were both candidates being called for interview? If the Selection Committee did not meet then who decided that both candidates would be called for interview? Was the holding of a “relevant post-graduate qualification” a necessary criterion in order to be called for interview? We have nothing but unanswered questions. The person appointed does not hold any relevant post-graduate qualification.

Is it correct in stating that no questions or menus were included, there is a copy of the document to which the Respondent refers. It contains 15 general and very simplistic questions. The areas included are so basic as to be meaningless and they cover only a very limited section of the school/education spectrum. The questions asked differed from those of the first interview but they were extremely narrowly focused and lacking in challenge, similar to the situation in the first interview. Again they were designed to achieve the desired outcome of promoting a pre-selected young candidate.

The questions do not match with the categories as outlined by the Respondent. They were certainly even more basic, limiting, restrictive and narrow focused than those of the first interview.

Age: The Respondent states that candidates were not asked their age and of course this is true. She fails to state however that Page 2 of the application form seeks information about applicants’ qualifications and part of this information asks for ‘Year of Graduation’ which in my case, for her first degree is 1974. Page 3 requires details of all teaching and relevant experience with dates.

She was clearly discriminated against on the basis of her age.

Qualifications:

She is much more qualified and she has an enormous amount more relevant experience than the successful candidate, M. E. M.

The area in which the successful candidate holds a Post-graduate qualification bears no relevance to the position of Deputy Principal. Therefore she does not hold a “Relevant Post-graduate qualification.”

Serving on the Board of Management (BOM) is not a qualification.

To make the claim that serving on the BOM enabled her to acquire knowledge and understanding of the operation of the school is risible in this context. It is a claim that holds some weight in relation to parents’ representatives or people from other professions who may sit on BOMs but who have no experience of the workings of schools from the inside. For teachers who work within schools and have the most moderate powers of observation and engagement it is a claim that carries no weight.

Furthermore, lack of having served on the Board of Management did not deter the Acting Principal, J. D., from being appointed to her position.

The Third Interview

She delivered her application form by hand to the Loreto Education Centre on the closing date for applications. The form was accepted from me by the seconded Principal, B. C. whose body language demonstrated clearly her hostility towards her. This was observed by others in the vicinity at the time.

The Selection Committee consisted of the Chairperson of the Board of Management (BOM) of Loreto College, Crumlin who works in the Loreto Education Centre in Foxrock; a member of the BOM of Loreto College, Crumlin; the recently retired Principal of Loreto College, Beaufort; a Loreto Sister who is Deputy Principal in St. Aidan’s Community School, Brookfield, Tallaght where the Loreto Order shares trusteeship, and the Principal of a school which is located in close proximity to Loreto College and who is a friend of the Principal.

She does not feel confident that this board was independent or objective.

The procedure surrounding this interview raises major questions. Since we are given no date for a meeting of the Selection Committee it follows that the Selection Committee never met. There is no reference to criteria for shortlisting. The Respondent states “Since both candidates were being invited to interview, there was no need to establish criteria for selection for interview.” On what basis were both candidates being called for interview? If the Selection Committee did not meet then who decided that both candidates would be called for interview? Was the holding of a “relevant post-graduate qualification” a necessary criterion in order to be called for interview? We have nothing but unanswered questions. The successful candidate held ‘basic qualifications’ only. In the earlier interviews applicants with basic qualifications only were NOT shortlisted for interview.

This is the third in a series of interviews all of which are, in effect, for the position of Deputy Principal in Loreto College, Crumlin. Surely the criteria for selection of candidates to be interviewed should be absolutely clear and transparent and should be consistent across all three 3 interviews?

If the Respondent did not personally assign marks to either candidate at this interview the question is WHY? If she assigned marks to the candidates at the previous 2 interviews then why did she act differently at this interview? If she was a member of the panel did she not have an obligation to assign marks and to behave in a manner consistent with earlier interviews? Wouldn’t she have had to explain her actions to the panel and given reasons why?

She further states that she participated minimally in the interview so as to ensure maximum objectivity in the outcome. The corollary of this is that she actively participated in the earlier interviews in order to ensure the outcome that she wanted.

In relation to her participation in this interview she noted at the time that she asked me 7 times in varying ways and at different periods throughout the interview at what time she thought the Deputy Principal should arrive at the school in the mornings. Due to traffic considerations the person appointed has always needed to arrive at the school between 7:30 and 8am. This was representative of the standard of questioning at this interview. She considered the interview an insult to her intelligence and so far removed from what the focus of such an interview should be that she found it difficult to proceed through the motions at times. Further, during the course of the interview, when she made a point that my experience as HSCL Coordinator would be very beneficial in assisting me with … the Chairperson interjected to explain to the other members of the interview board that she was an excellent HSCL Coordinator… This was patronising and totally unacceptable conduct in the course of an interview and her comment bore no relevance to the position for which she was applying.

The information set down here is not credible but it does make it totally clear that proper procedures were not followed in relation to this interview. This impropriety speaks for itself. Complete lack of professionalism and integrity surrounded the interview in several respects. This interview was not properly conducted and was a charade. The statement of the Respondent suggests that each member signed the document. The copy of this document sent to me has no signature whatsoever on it (Appendix 6). Her assertion is that the document relating to this interview was created only when she wrote to the Chairperson of the Board of Management in April 2012 requesting documentation relating to the interviews.

The Chairperson of a selection committee has very specific responsibilities. This interview was not conducted in a proper fashion. It was a charade. As in the case of the earlier interviews the outcome had been decided before the interview took place and the degree of carelessness in relation to the entire matter was so great that people didn’t even bother to assign marks to categories and the Chairperson bothered only in a minimal way to engage with the ‘pretend’ interview. Immediately prior to the interview, before entering the room, the Chairperson patted her on the arm and shoulder (which she considered totally inappropriate conduct as she was about to enter a formal interview situation) while stating the following: “Now this time it’s a complete new interview board; you won’t know any of them and they don’t know you…”

Later, there was the conduct of Sr. A. O’D. , a Loreto Sister, which in this interview was ‘outrageous’ and she has no hesitation in stating that, based on her experience, Sr. A. is totally unsuited to being a member of an interview board. She also understands that she knew the other applicant for the post. She had clearly studied her application form in great detail searching for some item which she was going to twist and use in a manner to launch an outright attack on me. She was asked two questions at interview neither of which was relevant to the position for which she was being interviewed. Her actions were clearly pre-planned as she had brought along a document which she raised into the air twice as she lectured me in a raised voice, her face red with agitation. Her conduct was completely out of order but the Chairperson who had already behaved inappropriately herself and who, in the Introduction to her Response claims to have discharged the duties of the role of Chairperson “with integrity, respect, and professionalism,” allowed this conduct to go completely unchecked. She thereby failed openly in her responsibility to ensure that the interview would be conducted with integrity, respect, and professionalism.

The fact that the Chairperson has not been able to trace any notes from this interview is further proof that this interview was a charade. As Chairperson she is responsible for all notes and marks relating to the interview and for the proper conduct of all aspects of the interview.

She feels certain that no notes were recorded by anybody and no marks were awarded by anybody at this interview.

Gender: The Respondent claims that the best candidate for the position was appointed. There is no evidence or transparency as to how the decision as to who was the best candidate was arrived at.

Family status: The successful candidate is not married. There is no evidence or transparency as to how the decision to appoint him was arrived at.

She contends that she was discriminated against on the grounds of gender and family status.

Age: The Respondent states that the successful candidate had taught for some years before joining the staff in Loreto College, Crumlin Road. She too held a permanent position in another school before joining the staff in Loreto College, Crumlin Road.

Qualifications: It is clear from the Respondent’s information that the successful candidate holds what she refers to as “the basic qualifications” only.

Programmes Coordinator is a Post of Responsibility in the same way that School Development Planning is a Post of Responsibility. However, it was never a high profile POR in the way that School Development Planning was. She too was appointed to her POR on merit and all PORs must be sanctioned by the DES. She also understands that there was no other applicant for the Programmes Coordinator Post of Responsibility at the time and the successful candidate later chose to vacate this post.

Serving on the Board of Management is not a qualification.

To make the claim that serving on the BOM enabled him to acquire knowledge and understanding of the operation of the school is risible in this context. It is a claim that holds some weight in relation to parents’ representatives or people from other professions who may sit on BOMs but who have no experience of the workings of schools from the inside. For teachers who work within schools and have the most moderate powers of observation and engagement it is a claim that carries no weight.

Further, lack of having served on the Board of Management did not deter the Acting Principal from being appointed to her position.

Overall comment by Complainant re questions during the interviews:

In this entire series of interviews the Selection Committee failed to approach appointments with the bigger picture in mind. The questions were narrow and simplistic designed so as to ensure the pre-agreed outcome. Regrettably, the approach was so limited as to see the role of school management as, in essence, one of managing conflict and dealing with discipline issues. This is the antithesis of effective school leadership. It is literally putting the cart before the horse. This is not to suggest that discipline is not extremely important but to appoint a person to a management position on the basis of statements as to how he/she would react to discipline issues is completely misguided. The tradition in Loreto College has been to pay lip-service only to discipline and this is reflected in the views of staff members as reflected in the Health and Safety Audit (Appendix 12). Designing questions to enable an interviewee to describe situations in which they have been involved in reacting to indiscipline (which may or may not have happened) is completely discriminatory towards candidates such as myself who come to the table with a very broad based perspective and a vision for the development of a progressive school and who have not been reacting to discipline issues in the ‘recent’ past. The fact that we have not been reacting to discipline issues in the recent past in no way lessens our competence to deal with discipline issues. Such an approach also militates against external candidates many of whom apply for senior management positions following a period on secondment or a period working in an area that complements their prior experience. Such people, among whom I include myself, have the experience, the vision, the perspective and the confidence necessary to develop a successful school.

Reacting to events and incidences is completely inappropriate and outmoded as a style of leadership. She subscribes to proactive leadership where she would lead the school with a vision for the future focusing on clear goals that the school community, working collaboratively, would seek to achieve. The Principal, Blathnaidh Colhoun, commenting once on the fact that she is a very proactive worker, added that she was “not used to working with people like this.”

In her interviews, each time she tried to include how my broad range of experience made me extremely well suited to a management position she was interrupted and another question which was restrictive and narrow in nature was posed.

In the first 2 interviews she was discriminated against on the ground of age. Both appointees are several years younger than me. Prior to taking up her secondment position in the Loreto Education Centre, Foxrock in September 2011 while referring to her position as Principal in Loreto College, Crumlin, she has heard B.C. state that “this is a job for a young person who has lots of energy.” On another occasion, when the current Acting Principal had been absent for a reasonably prolonged period, she heard the Principal, B. C. heave a deep sigh and make the comment that she found it very difficult working in the school when this member of staff was absent.

B.C. was a member of the interview board for the filling of the first two positions.

In the third interview she was discriminated against on the basis of gender and family status.

In all three cases the Respondent’s information is completely lacking in transparency and fails totally to show the basis on which any of the successful candidates was selected. Further, Section G of the Agreed Criteria for shortlisting of candidates is completely discriminatory against all external candidates who have not previously worked in a Loreto School.

She has provided very considerable evidence to support my allegation that she was treated less favourably than the successful candidates at each interview and that she was discriminated against on the grounds of age, gender and family status.

There was harassment and bullying involved in all 3 interviews. She was discriminated against in all three interviews. The lack of transparency in the entire selection and interview processes facilitated the harassment and bullying that occurred.

The contention of the Respondent that being “older” and having “longer service in the school” does not constitute discrimination on the age ground would be true if the situation were as simple as that. However, this Complainant was much more highly qualified and much more experienced than the successful candidates, with qualifications and experience that were directly relevant to management positions, unlike them. These qualifications and the very broadly based range of experience that she has in the precise areas that are at the core of what is required for successful school leadership put me in a position of being the most suitable and the most qualified candidate for these positions. She is also a highly competent and efficient person who would never have made any of the serious mistakes that have been made by the new management since taking over that role.

She was therefore discriminated against on the grounds of age, family status and gender.

She refutes completely the contention of the Respondent in the third paragraph of 6.5 where she asserts that the Complainant seems to believe that because she is an experienced employee she should have been promoted and that she is asking the Tribunal to afford her more favourable treatment because she had more years of service than the successful employees. The Respondent has nothing whatsoever on which to base this claim. She has provided abundant evidence to show that she was by far the most qualified and the most experienced applicant for the positions but she was, in fact, discriminated against on the grounds of age, family status and gender.

Conclusion:

Loreto College, Crumlin is an extremely ageist working environment and has been for quite some time. As pointed out above, there is nobody on the staff who has reached 60 years of age. Extremely competent and talented senior teachers who have been the backbone of the school have retired at the earliest opportunity, in most cases due to stress and lack of being valued or appreciated, i.e. due to ageism. It is absolutely certain that she was discriminated against on the grounds of age, gender and family status and she has established a prima facie case in respect of each complaint. She has outlined clearly that on the basis of my qualifications, experience and suitability she was the person most suited to promotion and she is in no doubt that the Selection Committees were also well aware of this. However, Question 2 (Appendix 2) was rephrased at my interview to state “recent past” which on a request for clarification was stated to be “in the past year” which ensured that because of my secondment and HSCL role this question was not applicable and would favour a younger colleague who was in the classroom and held a year head role at the time. The same discrimination is manifested in Questions 1, 2, 4 and aspects of 6 and 7 all of which are fixated on discipline and designed to facilitate and to favour the pre-selected candidate who was in a classroom and had a year head role. This is not the norm in interviews for senior management positions.

In the first interview she was discriminated against on the ground of age.

The exact same situation is true of the second interview. Here the categories were rearranged but the fixation on discipline was largely the same. This fixation represented a totally disproportionate concentration on discipline designed to favour the pre-selected young candidate who was in a classroom and had a year head role.

In the second interview she was discriminated against on the ground of age.

For the third interview those charged with responsibility for conducting it didn’t even bother to go through the motions of drawing up categories. This interview focused again on discipline and on trivial matters such as the time one might arrive at the school in the mornings, what was meant by a particular choice of word in my CV, how one would cope on the many days on which a Principal could be absent for various meetings etc. etc. Questions were basic and lacking in challenge. They were clearly designed to facilitate the appointment of the pre-selected candidate.

In the third interview she was discriminated against on the grounds of family status and gender.

The range and extent of the relevant experience of the successful candidates in all three interviews began and ended with working in the classroom and having a year head role (first two). This falls very far short of what is required in serious interviews for senior management positions.

On the 3rd June 2011, a short time after two of the interviews had been held, at the final staff meeting of the school year the Principal, B. C., addressed the staff for the last time prior to departing on secondment. Before she closed the meeting she wished the new appointees every success in their appointments. She went on to make a plea to the assembled staff to “please be patient with them…” She added “They are young, they don’t have experience, they are only starting out, they will have to learn as they go along, it will take time and they will make mistakes… Be nice to them.” (Serous mistakes have already been made, as alluded to above). This message to the staff makes it absolutely clear that the Principal was well aware that the new appointees faced a challenge for which they were ill-equipped. On the other hand, she was an older member of staff who had all of the qualifications and experience necessary to assume a management position with complete confidence, competence, and efficiency.

It is clear that she was discriminated against because of her age in relation to the first 2 interviews and in relation to her gender and family status in relation to the third interview. There is a clear nexus relating the way in which she has been treated and the protected grounds.

Her complaints to the Tribunal relating to the school Principal are totally founded on fact and she has outlined some of those facts clearly above. Like numerous other teachers who have valid complaints she did not invoke the Grievance Procedure because of her knowledge that there would be reprisal, she would be ostracised, and continuing to work in the school subsequently would be rendered extremely difficult if not impossible. Those who speak out are victimised and discriminated against. There is plenty of evidence of that having happened within the school.

The truth of the discrimination, harassment and bullying that she has been subjected to constitute a sad reality. It is regrettable that the school management and the Board of Management do not see fit to uphold the Loreto ethos which subscribes to the core values of truth, freedom, justice, sincerity and joy, values which, according to the Loreto philosophy of education, are centered in God, rooted in Christ and based on
Gospel values which underpin the entire educational experience in Loreto schools. The Principal and the management are perfectly happy to subject employees to enormous injustice, harassment and bullying, giving rise to high levels of stress in many teachers, once the wrongdoing would be couched in secrecy, masked by agreed procedures, and kept away from the public domain.

There is no teacher who has reached 60 years of age on the staff. In the past several years only one teacher who was not promoted past Assistant Principal level has worked past 60 (this person retired at 61). The reasons for this are the enormously high stress levels associated with working in this school environment and the very high degree of ageism that exists within management manifesting itself in a very strong bias against older teachers, complete disregard for them or for their contribution, unacceptable treatment of them, and all of this resulting in their suffering very high stress levels.

Agism is the main reason upon which discrimination is alleged in this case.

‘Other Matters’ raised concerning the period 2008 to 2011 were excluded as they were deemed out of time.

She is seeking compensation for breach of her right s under this Act. She is also seeking that she is paid at the salary of Deputy Principal.

3. Summary of Respondent’s position

Response to the alleged discrimination concerning the selection Interviews

First Interview – April 8 and 11, 2011.

The Deputy Principal of the school retired with effect from August 31, 2011. In accordance with the national procedures agreed between the Joint Managerial Body (JMB) and the Association of Secondary schools (ASTI) and sanctioned by the DES, the Board of Management of the school proceeded to appoint a new Deputy Principal. An Advertisement was placed in the Irish Independent on Thursday, March 10, 2011 and in the Sunday Independent on March 13, 2011 In accordance with standard practice in Loreto schools, an Advertisement was also placed on the Staff Notice Board in Loreto College, Crumlin Rd. An Application form for the position of Deputy Principal was prepared. A Selection Committee of 5 persons was established, in accordance with agreed

Procedures. The Selection Committee met on March 29, 2011 for the purpose of drawing up criteria for the selection of Candidates for interview. This was done before any completed Application Form had been considered. Following the establishment of the criteria, the Application Forms received were considered. Eight Candidates – including the Complainant – were invited for interview in Stillorgan Park Hotel on April 8 and 11, 2011. The areas for assessment were agreed. Each Interviewer was asked to prepare a number of questions. The same (or very similar) questions would be asked of each Candidate. Each interview was approximately 45 minutes with a further 15 minutes allocated to each Candidate to consider a brief ‘Scenario’ and prepare a response. The Complainant was among those interviewed on April 8, 2011. At the conclusion of all 8 interviews on April 11, the marks allocated to each. Candidate by each member of the Selection Committee were accumulated. The Candidate with the highest total of marks was deemed to be the most suitable. Candidate for the position of Deputy Principal in Loreto College, Crumlin Rd. This was duly recommended to the Board of Management and the person was appointed as Deputy Principal with effect from September 1, 2011.

Response to points made by the Complainant about the interviews

The position of Deputy Principal had certainly NOT been filled before the selection process. Apart from the unacceptable departure from the agreed procedures which would be involved in such a situation, this school with serious financial pressures would scarcely have engaged in an expensive process of advertising, hire of hotel rooms, expenses of the Selection Committee etc if the outcome had already been determined.

Neither did the selection Committee set “unreasonably high standards” for the Complainant. The arrangements and process were the same for all Candidates. The Complainant asserts that in the marking sheet drawn up by the Principal, no mark is recorded for the first category, namely the ‘Scenario’. This is not correct. The mark given was simply misplaced on the sheet. The Principal’s marking sheet records a mark of 8 out of 15 for the first category. This mark was included in the total mark of 56 out of 75 assigned to the Complainant for this category based on the following marks from the 5 members of the Selection Committee: 8+10+12+12+14. In the absence of a Stenographer at the interviews, the precise questions asked of any Candidate were not recorded. It is not practice to have a Stenographer at school interviews. However, it can be confirmed that the wording of the questions asked was exactly or close to the questions included in the menu of questions prepared. The same (or very similar) questions in the same order were put to each Candidate. The Complainant’s assertion that posts she held were “historically the pathway to promotion” is not accepted. The posts of Home/School/Community Liaison teacher (HSCL) and of School Development Planning Co-Ordinator are comparatively new in the Irish education system. The posts do not even exist in many schools. The Board of Management was not involved in the Complainant’s acquiring the position with the School Development Planning Initiative (SDPI) other than to agree to her secondment from the school to take up the position. On her return from SDPI to the school staff, the Complainant was appointed to the HSCL position and was thereby relieved of teaching responsibilities.(see further below). The Complainant’s role as School Development Planning Co-Ordinator arose from the tasks assigned to her Post of Responsibility. In Secondary schools, seniority in the Staff is a determining factor in appointments to PORs at Special Duties and at Assistant Principal levels but NOT at Deputy Principal level (see further below). The Complainant states that she was discriminated against in this interview on grounds of gender, family status and age. On behalf of the Board of Management, she refutes this allegation and state as follows:

Gender: The successful Candidate is a woman. The Complainant was not discriminated against on gender grounds

Family status: The successful Candidate is married. We know nothing about her husband or children. Such information is irrelevant. The Complainant is married. We know nothing about her husband or family. Such information is irrelevant. The Complainant was not discriminated against on grounds of family status.

Age: No Candidate for the position was asked to state his/her age. We do not know the age of the successful Candidate. We do not know the age of the Complainant. I acknowledge that the Complainant has longer service in the school than the successful Candidate. However, seniority is not a determining factor in appointments to Principal or Deputy Principal Posts in schools.

Qualifications: Every teacher in a Secondary school is required to have a basic degree and a post-graduate teaching Diploma. In addition, the successful Candidate holds a Master’s degree and a Diploma in Educational Management which is immediately relevant to a leadership position in a school. The Complainant holds a Diploma in Linguistics, a Diploma in School development Planning and a Master’s degree in Education. The Complainant was not discriminated against because of her age or qualifications or on any other ground.

Second Interview. May 26 , 2011.

Shortly after the first interviews which resulted in the appointment of the Deputy

Principal, the Principal of the school was appointed Education Development Officer for all Loreto schools in Ireland. This is a full-time position, working out of the Loreto Education Centre at Foxrock. The Board of Management agreed to the secondment of the Principal to the position of Education Development Officer from September 1, 2011, with the approval of the DES. As a result of the Principal’s secondment to another position, the newly appointed Deputy Principal was appointed Acting Principal for the duration (max 5 years) of the Principal’s secondment. This necessitated new interviews for the position of Acting Deputy Principal. Since this is a temporary position while the Deputy Principal is Acting Principal, the position was advertised internally only and confined to internal candidates, in accordance with agreed procedures (Appendix 12). Two applications were received, including one from the Complainant. A Selection Committee was established, with two members who were not on the Committee for the first interviews (Appendix 13). Since both Candidates were being called for interview, there was no need to draw up criteria for selection for interview. The Complainant states that “no questions or menus” for the second interview were included in documentation supplied to her. In fact, a copy of the areas of questions for the second interview was included as document number 11 in the material sent by me to the Complainant on May 10, 2012 (Appendix 14). The Complainant asserts that “most of the categories for the second interview differ from those of the first”. This is not correct. The ‘Scenario’ (Category 1) was omitted at the second interview. All the other categories were identical as follows:  

         Interview 1         Interview 2

Capacity to manage conflict.                  Cat 2                  Cat 2

Curriculum, Teaching & Learning           Cat 3                  Cat 4

Discipline                                                Cat 4                  Cat 2

Pastoral Care                                          Cat 4                  Cat 5

Capacity to ensure ethos                        Cat 5                  Cat 3

Understanding of role                             Cat 6                   Cat 1

Style/quality of leadership                      Cat 7                    Cat 6

The second interviews were held in the Stillorgan Park Hotel on May 26, 2011. At the conclusion of the interviews, the marks allocated under each Category to each Candidate by each member of the Selection Committee were accumulated. The Candidate with the highest total of marks was deemed to be the most suitable for the position of Acting Deputy Principal. This was recommended to the Board of Management and the person was duly appointed with effect from September 1, 2011. The position of Acting Deputy Principal would last as long as the Deputy Principal was Acting Principal which, in turn, would be determined by the length of the secondment period of the Principal. The Complainant states that she was discriminated against in this interview on grounds of gender, family status and age. This allegation is refuted and they state as follows:

Gender: The successful Candidate is a woman. The Complainant was not discriminated against on gender grounds

Family status: The successful Candidate is married. We know nothing about her husband. We know that she has two young children. Such information is irrelevant in the Selection process. The Complainant is married. I know nothing about her husband or family. Such information is irrelevant.

Age: Neither candidate for the position was asked to state her age. We do not know the age of the successful Candidate. We do not know the age of the Complainant.

It is acknowledged that the complainant has longer service in the school than the successful Candidate. However, seniority is not a determining factor in appointments to Deputy Principal posts in schools.

Qualifications: In addition to her basic qualifications, the successful Candidate holds a Master’s Degree. She has served as the elected teacher member of the Board of Management of the school for two terms (6 years) which enabled her to acquire knowledge and understanding of the operation of the school. The Complainant holds a Master’s Degree in Education a Diploma in Linguistics and a Diploma in School Development Planning.

The Third Interview. December I, 2011.

Shortly before taking up the position of Acting Deputy Principal, the teacher indicated that she would be applying for Maternity leave from mid-December 2011. This necessitated the appointment of a Temporary Acting Deputy Principal. The position was advertised internally. Two applications were received, including that of the Complainant. A Selection Committee was established in accordance with agreed procedures. Four members of the Selection Committee had not been involved in either the first or second interviews. Since both Candidates were being invited to interview, there was no need to establish criteria for selection for interview. The interviews were held in the Moran Red Cow hotel on December 1, 2011. As already indicated to the Complainant the Chair did not personally assign marks to either Candidate at this interview. She participated minimally in the interview so as to ensure maximum objectivity in the outcome. The Selection Committee decided that they would agree a total mark under each category for each candidate and sign the document. The marks were assigned accordingly and recorded. The Selection Committee dispersed without having secured their signatures. This was an oversight on her part. The four persons involved in the interview on December 1, 2011 are available and can be contacted if necessary to confirm this account of events. She had not been able to trace any notes from this interview. The Candidate with the highest total of marks was deemed to be the most suitable for the position of temporary Acting Deputy Principal. This was recommended to the Board of Management and the teacher in question was appointed to the position. This position was terminated at the end of the academic year 2011/12. The Acting Deputy Principal resumed her position as school re-opened for the 2012/13 academic year.

The Complainant states that she was discriminated against in this interview on grounds of gender, family status and age. These allegations are refuted and state as follows:

Gender: Loreto is an Equal Opportunities Employer. As in all interviews, the best Candidate for the position was appointed. Gender is not a factor in determining who is recommended for appointment. We do not discriminate on any ground. The Selection Committee was composed of three women and two men.

Family status: The successful Candidate is not married. We do not know if he has any other domestic arrangement. Such information is irrelevant. The family status of either candidate would not have been known to the Selection Committee. We do not discriminate on any ground.

Age: We do not know the age of either Candidate. They both joined the staff of the school in or around the same time (1977/80). The successful Candidate could, in fact, be slightly older than the Complainant as he had taught for some years before joining the staff in Loreto College, Crumlin Rd.

Qualifications: In addition to the basic qualifications, the successful Candidate has held the position of Programme Co-Ordinator in the school for a number of years. This position is sanctioned by the DES, outside the school’s quota of PORs, appointed on merit and entitles the holder to a reduced teaching load to carry out the duties of Co-Ordinator. The successful Candidate also served as an elected teacher member of the Board of Management of the school for two terms (6 years), giving him an insight and understanding of the running of the school

Over-all comment by Complainant re questions during the interviews:

It should be noted that each interview included questions with elements of the competency-based approach. This approach puts emphasis on how the candidate had already exhibited the various competencies as identified on the Application Form. It would not be unusual that any Candidate who offered lengthy replies to any one question would be led to consider another topic. This would be to ensure that she/he had an opportunity to address each of the different categories. It is considered important that each Candidate got the same spread of questions within the time available for the interview. The Respondent finds no evidence to suggest that the Complainant was discriminated against on the gender ground, family status ground, age ground or any other ground in respect of any of the three interviews complained of. The Respondent finds no evidence to support the Complainant’s allegation that she was treated less favourably than the comparator successful candidates at each interview. The Complainant has not established a prima facie case of discrimination on the grounds complained of or any ground.

The Complainant makes reference to case law relating to a complaint of victimisation (A Named Employee v Tesco Ireland E2006 031). However, no complaint of victimisation relating to any of the three interviews has been articulated by the Complainant. The Respondent contends that the mere fact that the Complainant was older and had longer service in the school than the successful appointees does not constitute discrimination on the age ground. The Complainant is entitled to disagree with the decisions of the Selection Committees not to recommend her appointment to the various posts. However, the Complainant seems to believe that because she is an experienced employee, she should have been promoted. In effect, the Complainant is asking this Tribunal to afford her more favourable treatment because she had more years’ service than the successful appointees. This is unsustainable.

‘Other Matters’ raised concerning the period 2008 to 2011 were excluded as they were deemed out of time.

The claim is rejected.

4. Findings/Conclusions of the Equality Officer

Sec 77(5) (a) states, “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)“On application by a complainant the Director or Circuit Court, as the case may

be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have the effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction: and where such a direction is given, this Part shall have effect accordingly”.

This claim was presented to the Tribunal on 24th May 2012. Therefore the period that may be considered is 25th November 2011or in the case of an extension if granted is 25th May 2011 to 24th May 2012.

“Other Material”

I note that there were a number of issues referred to as “Other Material” which was contained in the Complainant’s submission. These matters referred back to a time between 2005 and 2010, e.g. in 2009 the title “Co-Ordinator was removed, lack of IT in school added enormously to her work load in 2009, use of her Irish name refers to October 2005, open hostility was referred to occurring in 2006 -2009, posts of responsibilities issue dates back a number of years, incident and email on November 18th 19th 2010, job sharing refers back to 2007-2008, planning issues referred to 2005 -2008, in service /CPD referred to 2009.

I have considered these matters and I have found that they were not linked to each other. I did not find a nexus between the matters of concern raised by the complainant.

I have found that they were more of general grievances in nature rather than equality issues.

I also find that these matters are outside the time limit allowed under Sec 77 as set out above and so therefore will not form part of this investigation.

Interviews

I note that the first interview took place on 8-11th April 2011. The second interview took place on 26th May 2011. The third interview took place in December 2011.

Request for an extension to the time limit to encompass all three interviews.

Complainant

The Complainant requested an extension to the time limit. She stated that she knew after the first interview that there was going to be another position available. She decided to await the outcome of that process. The extension should be granted.

Respondent

They stated that she did not challenge the outcomes of the first and second interviews. Therefore she accepted those outcomes. She awaited the outcomes as she knew there was going to be another opportunity. An expectation of a second chance is not a reasonable cause to extend the deadline. The longer the delay in making the claim, the more reason not to extend the deadline. This is rejected.

Decision on the request to extend the deadline.

The Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC0333) stated, “in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I have considered this request to extend the deadline. I found that the Complainant has not made a case to extend the deadline other than she waited on the outcome of the interview processes. The request to extend the deadline is rejected.

Therefore the period that may be investigated is 25th November 2011 to 24th May 2012, the date of presentation of the claim.

The next decision that has to be made is whether the three interviews are connected, if not then the only one that is within the allowable time limit is the third interview that took place in December 2011.

I note that it is the Complainant’s position that all three competitions were related. They were all for the same job in essence. There was a nexus, a continuum so therefore all three may be considered.

I note that the Respondent’s position is that these were three separate competitions. The first competition was for the post of Deputy Principal. The second competition was for the post of Acting Deputy Principal and the third competition was for the post of Temporary Acting Deputy Principal. The selection criteria and panel were different in all competitions. In the last panel four of the five participants had not sat on the previous panels.

I have considered this matter and I find that there were three distinct competitions. There were three distinct panels for selection. There were three distinct criteria used because of the distinct nature of the competitions. The first competition was an open competition. The second and third competitions were confined to internal candidates only. This necessitated the use of different criteria.

I have reflected on this matter and I find that the three competitions were distinct and therefore I did not find that there was a nexus or continuum between them.

Therefore as per Sec 77 (5) the only complaint that I may investigate relates to the third interview that occurred in December 2011.

3rd Competition

I note that the Complainant alleges that when she delivered her application she experienced body language that was hostile. This is a perception of a grievance which is of a general grievance in nature rather than a specific claim for discrimination under this Act. This will be disregarded for the purpose of this investigation.

I note that she alleges that the selection committee was not independent or objective.

I note that the ASTI and Joint Managerial Bodies agreed the composition of such panels and that the College in this instance complied with that agreement.

I note that the panel was made up of three females and two males.

I find her allegations that the panel was biased and that the external Principal was a “friend” was purely subjective and without substance.

I note that the Acting Deputy Principal and Temporary Acting Deputy Principal post competitions were confined to internal candidates only and as only two candidates competed for these posts there was no need for a shortlisting of candidates.

I note that the Complainant has queried why there was not the same process for all 3 competitions. As I am investigating the 3rd competition only I will not address that point.

Chair not marking the interviews

I note that the Chair of the selection panel did not mark the interview. She advised the hearing that it was done for the purpose of removing any suggestion of bias in the Complainant’s mind.

I note that irregularities and inconsistencies can lead to an allegation of discrimination.

I have reflected on this point and I have concluded that the Chair was well motivated and it was done so as to remove any possible suggestion that she was biased in the selection. It appears to support her position that she did not exercise any influence on the selection process.

I note that the Chair has stated that she was unaware of any of the “Other Material” until the Complainant made her submission.

Therefore I have disregarded that allegation.

Qualifications

I note that qualifications were used for the shortlisting of candidates for the first interview only.

I note that qualifications were not part of the selection criteria for the third competition. In fact I note that qualifications were not used as criteria for any of the three competitions.

Therefore I find that qualifications as a matter of alleged discrimination must be disregarded.

Also I find that qualifications don’t arise as the Complainant cannot sustain an age issue.

Ageism

I note that the Complainant alleges in her complaint that “she was treated unequally and unfairly and discriminated against in comparison to two younger workers on the basis of her age.

I note that her representative at the hearing affirmed that her main plank for alleging discrimination was that of ageism.

I note that the successful candidate for the third competition was a person who was of the same age or slightly older than the Complainant.

On that basis it is clear that no discrimination could have taken place on grounds of ageism.

Overall I have found that the Complainant has not established a prima facie case of discrimination.

6. Decision of the Equality Officer

I hereby make the following decision in accordance with Sec 79(6) of the Employment Equality Acts.

I have decided that the claim was not well founded and that it fails.

______________________________________

Eugene Hanly

Equality Officer

24 February, 2015