EDA1512

In this determination Ms Burke is referred to as the Complainant and the Board of Management of St Nathy’s College is referred to as the Respondent.

The facts
The salient facts of the case are not in contention between the parties and can be summarised as follows: -

• • •The Complainant was employed by the Respondent as a teacher from September 1987 until she retired in February 2012. On or about September 2011she applied for the post of deputy principal of the College. She was not shortlisted for interview for the position.

    •There were 12 applicants for the post in issue. The Respondent decided to create a shortlist of four candidates who would be interviewed. The task of shortlisting was assigned to a selection board.

    •Before considering the applications the selection board adopted criteria against which the shortlist would be created. Those criteria included,inter alia,a requirement that candidates must submit a“properly completed application form”and they must show“evidence of commitment to the school ethos and having a vision for the school”.

    •On making enquiry as to the reason for not being shortlisted the Complainant was informed by the chairperson of the selection board that she had not met the shortlisting criteria in two respects. Firstly, it was claimed that her written application was not well presented and was not typed. Secondly, it was claimed that in her application she had failed to provide clear evidence of a commitment to the school ethos.

    •It is accepted that the reference to ethos was a reference to the Catholic or Christian ethos of the school.

  
  
  

The Respondent denies that any such imputation could reasonably be inferred from what was conveyed to the Complainant. It was the Respondent’s case that she was not shortlisted because her written application was not well presented and that she failed to adequately demonstrate in her application a commitment to upholding the ethos of the School. The Respondent pointed that the Complainant is a Catholic and that those who were shortlisted for interview were also Catholics. It was submitted on behalf of the Respondent that in the absence of comparators having a different religious belief to that of the Complainant her claim cannot succeed.

Conclusion
In this case the Respondent contends that the Complainant was not shortlisted for the post for the reasons already referred to. The Complainant’s written application form was put in evidence. From its own examination of the written application overall, the Court is inclined to the view that the criticism directed at its quality is somewhat harsh and unjustified. However, as was pointed out by O’Sullivan J. inMulcahy v Waterford Leader Partnership[2002] 13 E.L.R 12, there is no principle in either law or in logic on which to hold that because a person offers a bad reason for an impugned decision that this necessarily means that the bad reason is not the real one. This case is not concerned with the objective fairness of the Respondent’s decision. The only issue before the Court is whether that decision was tainted with unlawful discrimination on grounds of the Complainant’s religion or religious beliefs.

Unlawful discrimination arises where one person is treated less favourably than another because they have a particular characteristic that the law regards as irrelevant. Hence, the scheme of the Act is based on comparison. A claim of discrimination must be grounded by reference to the treatment afforded to a comparator, actual or hypothetical, who does not have the protected characteristic relied upon. In the case of discrimination on grounds of religion, s.6(2)(e) of the Act provides that the comparison must be between persons one of whom has a different religious belief from the other, or between one who has a religious belief and another who has not. For the purpose of the Act religious belief includes religious background or outlook.

Section 6(1) the Act provides that discrimination may arise where the protected characteristic:-

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

In the instant case the Complainant was treated less favourably in not being shortlisted for the post in issue than four others who were shortlisted. It is, however, clear that the Complainant professes the Catholic faith and that each of those shortlisted are also adherents of that religion. That fact alone indicates that the less favourable treatment of which the Complainant complains could not have arisen because of her religious belief.

Faced with that obvious difficulty the Complainant contends that the import of the decision conveyed to her by the chairperson of the selection board imputed to her a religious belief other than that of the Catholic faith. No evidence was proffered to support that contention and the Court was merely invited to infer that such an imputation arises.

The Court cannot accept that submission. Candidates were not asked to disclose their religion in the application form. However, it is noted that in her application the Complainant indicated that she was a member of the parish council of her home parish in the Archdiocese of Tuam and she nominated as one of her referees a Catholic Parish Priest. That could reasonably be taken to negate any imputation that she was not a Catholic.

The selection board clearly did not believe that the Complainant had provided enough information in the narrative contained in her application form to demonstrate how she might promote the Catholic ethos of the school. That may, or may not, have been a reasonable conclusion in the circumstances. But it does not amount to an imputation that the Complainant professed any religious belief other than that which she in fact professes.

Burden of Proof
Section 85A of the Act provides for the allocation of the burden of proof in cases involving allegations of discrimination. The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board[2001] E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

The central primary fact upon which the Complainant relies in grounding her claim of discrimination is that the Respondent imputed to her a religion other than Catholicism. For the reasons set out herein the Court is satisfied that she has failed to prove that as a fact. In these circumstances and on the established test her claim cannot succeed.

Outcome
The appeal is disallowed and the decision of the Equality Tribunal is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
28th July 2015______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.