FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A NATIONAL SCHOOL (REPRESENTED BY MASON HAYES & CURRAN SOLICITORS) - AND - WORKER (REPRESENTED BY HAYES SOLICITORS INSTRUCTED BY INTO) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 6th February, 2015. A Labour Court hearing took place on the 24th and 29th June, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by A National School (The Respondent) against the decision of the Equality Tribunal in which it held that the School discriminated against a Teacher in the School,(The Complainant) in relation to access to promotion on the grounds of age, religion and sexual orientation contrary to Section 6(2) (d),(e) and (f) of the Employment Equality Acts 1998 to 2011 (the Act).
The Equality Tribunal issued its decision to the parties on 30 December 2014. In that decision the Equality Tribunal found that the Complainant had been discriminated against on the grounds of her religion, sexual orientation and age. The Tribunal awarded the Complainant compensation in the amount of €54,000.
The Respondent appealed the decision to the Labour Court on 6 February 2015. The matter came before the Court on Wednesday 24 June and again on Monday 29 June 2015. The Court subsequently sought submissions from both parties regarding the significance and relevance of Section 37 of the Act to the matters before it. Those submissions were received in Mid July 2015.
For ease of reference the parties are referred to in this Determination as they were at first instance. Accordingly, the National School is referred to as the Respondent and the Teacher as the Complainant.
Background
The Complainant is employed as the Deputy Principal in the respondent two teacher school. In 2011 the post of Principal fell vacant and was duly advertised. The Complainant applied for the post. She was called to attend for an interview for the position.
The manner in which the competition had been organised was disputed by the Complainant as not being in accordance with the rules laid down by the Department of Education. Those rules are set out in a Departmental document entitled “Boards of Management of National Schools – Constitution of Boards and Rules and Procedures” As a consequence that competition was abandoned, the vacant position was re-advertised and the Complainant re- applied for the post.
In total two candidates applied for the post and both were called for interview. The Complainant was not successful in the competition.
The Complainant subsequently objected to the composition of the Selection Panel, the manner in which it conducted the interview and the manner in which it made its decision. After some correspondence between her trade union, the INTO, and the school patron she submitted a complaint to the Equality Tribunal in which she claimed that her qualifications and experience were superior to those of the successful candidate and that she was asked discriminatory questions regarding religion and sexual orientation in the course of her interview.
The Respondent submits that the Selection Panel was properly constituted. The Chairman of the Board of Management of the School was not in a position to sit on the Selection Panel as he was supporting a terminally ill member of his family. Instead he appointed the person he considered his deputy to chair the Selection Panel. The Respondent maintains that there was no breach of procedure in this case and if the Court finds there was it was minor in nature and of no consequence for the purposes of this Act.
The Respondent denies that discrimination of any nature took place. It maintains that the Selection Panel appointed to carry out the interviews consisted of three experienced people who conducted the interview process fairly and honestly and selected the person whom it considered the best candidate for the position.
Position of the Parties
The Complainant
The Complainant contends that she was better qualified than the successful candidate and had significantly more teaching experience than her. The Complainant is older by some 10 years than the successful candidate.
The Complainant contends that in the course of her interview for the post at issue her views on matters relating to religious patronage and pluralism in the school were canvassed. She further contends that she was asked a question which was directed at adducing her view on the employment of homosexual teachers.
In reliance on these facts the Complainant contends that the competition was tainted with discrimination on grounds of age, religion and sexual orientation.
Oral evidence was given by the Complainant, which can be summarised as follows:
The Complainant told the Court that she qualified as a Primary Teacher in 1987. From 1990 to 2000 she lived in the USA where she worked in the Technology Industry, completed a Master’s Degree and further expanded her skills as a Teaching Assistant in Boston College. On her return to Ireland in 2000 she took up a lecturing position in UCC before returning to Primary Teaching in 2002. She has been employed by the Respondent’s two Teacher School since 2003 in the role of Deputy Principal.
The Complainant told the Court that in her role she has deputised for the Principal which requires her to handle difficult situations including representing the school in courts cases. She has a number of staff reporting to her in the absence of the Principal and she has responsibility for all computer and website work in the school.
In relation to the marks allocated at interview she said that she found it remarkable that she never scored higher than the successful candidate under any heading despite the fact that she had twelve years teaching experience at the time of the interview compared to the successful candidate who had four years. She said that under each of the nine interview assessment criteria required to be completed by all members of the Selection Panel the successful candidate got marks greater than or equal to her. The successful candidate she said was ten years younger than her and had not held a post of responsibility in her previous school.
The Complainant told the Court that in advance of the interviews taking place the issue of religion in schools was a hot topic. She said she found it unsettling and uncomfortable when asked about her views on the INTO Submission to the Forum on Patronage and Pluralism and its thoughts on religion. She said she did not know why she was being asked the question and she did not know how to answer it. She stated that she had read the INTO Submission and also the submission of the Irish Human Rights Commission. She viewed her personal religious beliefs as private and responded to the question by saying the school was already accommodating children of different faiths and none. Under cross examination the Complainant said that the words ‘Catholic Ethos’ were never mentioned at interview.
The Complainant said she was ‘floored’ when asked the question ‘What about the homos’ She stated that she did not know how she was supposed to answer it. She thought the question was about homosexual teachers not children and said in reply ‘they’re already there’.
The Complainant told the Court that she found the questions regarding her views on the INTO Submission and on homosexuality totally unacceptable, discriminatory and believed that they placed her at a great disadvantage. On her way home after the interview she said she spoke to a friend/colleague and told her about the questions she was asked. She also told her husband and contacted the INTO the following day.
The Respondent
The Respondent denied that the Complainant was discriminated against in the manner alleged or at all. It was the Respondent case that the competition was conducted fairly and in accordance with regulations made by the Department of Education and Skills. The Respondent’s position is that the selection of the successful candidate was based entirely on merit.
The Respondent pointed out that the school is a Catholic school under the patronage of a Catholic Archbishop and that the maintenance of the religious ethos of the school was a matter of legitimate interest in the filling of the post in issue. It is denied, however, that considerations relating to religion played any part in the decision to prefer the successful candidate over the Complainant.
The Respondent denied that the views of candidates on homosexuality were canvassed or that any question that could be construed as referring to that topic was put to the Complainant in the course of her interview or otherwise.
According to the Respondent the only mandatory qualification required for the disputed post was that candidates be qualified as a primary teacher.
The Respondent contends that the Complainant has failed to ground her claims of discrimination in so far as they related to religion and sexual orientation by reference to a valid comparator and on that account those claims cannot succeed.
Oral evidence was given on behalf of the Respondent by Mr H, who was Deputy Chairperson of the Respondent’s Board of Management and a member of the Selection Panel, Sr C, who is a retired primary teacher and who was a member of the Selection Panel and by Mr C, a teacher at second level who was also a member of the Selection Panel.
The evidence tendered by these witnesses can be summarised as follows:
Mr H’s Evidence
Mr H Deputy Chairperson of the Board of Management chaired the Interview Selection Panel. In evidence he told the court that he did not know the other Panel members in advance of the interviews. The rules regarding the conducting of interviews are set down by the Department of Education and specify the factors to be taken into account when assessing candidates. The factors are ‘professional qualifications’, ‘ teaching experience and reports on competence’ and ‘other relevant experience’. In advance of the interviews the candidates received the criteria under which they would be assessed. They were as follows:
- 1. Suitability of Qualifications
2. Professional Competence
3. Teamwork and Flexibility
4. Ongoing Professional Development
5. Educational Vision
6. Understanding of SEN
7. Leadership Competencies
8. Understanding of Principals Role
9. Performance at Interview
Mr H outlined to the court his impression of the two candidates. He said that the successful candidate was very positive, warm, confident, well prepared and willing to give her own opinion instead of simply reciting policy. The Complainant, he said, was quieter, paused before answering questions and concentrated on the past rather than what she might do in the future.
He told the court that in her questioning of Sr C referred to the INTO Submission to the Forum on Patronage and Pluralism and that she asked both candidates their views on it. He recalled that the Complainant had mentioned the Forum in her application but he said he did not recall the INTO’s views on religion being raised with her.
He said the question ‘what about the homo’s’ was definitely not asked and if it had been he would have collapsed the interview process immediately. It would be a wholly inappropriate question and it was not put to either of the candidates.
Under cross- examination Mr H told the court that the complainant was more qualified than the successful candidate and he could not explain why this was not reflected in the marks awarded to her. He said that the factors outlined in the Department of Education rules were taken into account under a number of the criteria headings (listed above) given to the candidates but he could not recall the number of marks awarded.
In relation to the interview notes he stated that they were vague, that he did not have time to take notes verbatim and he did not record every question asked.
He told the Court that he typed up some points following the interview and sent them to the Chairman of the Board of Management Fr O’D. These points were later incorporated into a letter sent by Fr O’D to Archbishop C. which stated that the Complainant was not asked about the INTO Submission but was asked for her personal views on Patronage and Pluralism of the school.
Sr. C’s Evidence
Sr. C, a retired Primary School Teacher, told the court that she had considerable interview experience and that she was given responsibility for asking questions of candidates regarding Catholic Ethos . She said she asked both candidates for their views on the INTO Submission to the Forum on Patronage and Pluralism but she did not ask about religion. Sr C said she had not read the INTO Submission herself but had read newspaper reports. She could not recall the Complainants reply.
Sr. C told the court she was positive she did not ask the question ‘what about the homo’s’ as it would have no bearing on the interview. She stated that while she did not know, she presumed the INTO would wish gay and lesbian teachers to be employed in schools. She also told the court that she did not know about Section 37 or what the Catholic Bishops view on that matter was.
With regard to the Complainant’s qualifications and experience she felt they were inferior to those of the successful candidate. She placed lesser value on qualifications granted by American Universities as held by the complainant and on the quality of her experience. She stated that the role of Deputy Principal in a small school was meaningless and this was discussed by the Selection Panel prior to the interview. She did not award the Complainant any marks for holding the Deputy Principal role as she felt it was of no value.
Sr. C told the Court she destroyed her notes of the interview on the evening of the interview.
Mr O’C’s Evidence
Mr O’C told the court that his questions to the candidates concentrated on ‘what if’ scenarios and he viewed the successful candidate as capable of making quick clear decisions compared to the complainant who came across as ultra-cautious. His view of the Complainant’s role of Deputy Principal was that the responsibilities associated with it are minor.
With regard to qualifications, Mr O’C told the Court that he believed they both had Level 9 qualifications and he marked them accordingly. In respect of the allocation of marks under the other assessment criteria (listed above) he said he took the factors outlined in the Department of Education rules into account but could not recall how and what marks were given.
He said that Sr. C asked both candidates for their views on the INTO Submission to the Forum on Patronage and Pluralism. He said he had no recollection of Sr. C asking about the INTO and religion nor did he recall how the complainant answered Sr. C’s question.
Mr O’C told the court that had the question ‘what about the homo’s ‘been asked it would have set off alarm bells for him and while he may not have stopped the interview he would have raised the matter with the Selection Panel after the interview.
With regard to the interview notes Mr O’C told the court he destroyed them three and a half years after the interviews and prior to his knowledge of the complaint to the Equality Tribunal.
Relevant Statutory Provisions
The following statutory provisions are relevant in considering the issues that fall to be decided in this case.
The general prohibition of discrimination by an employer is contained at s. 8 of the Act and applies in relation tointer aliapromotion or regrading.
Section 6(1)(a) of the Act provides: -
- For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
(i) exists,
(ii) existed but no longer exists,- (iii) may exist in the future, or
(iv) is imputed to the person concerned,
- (iii) may exist in the future, or
- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—
The discriminatory grounds that are proscribed for the purposes of the Act are set out at subsection (2) of s.6 and, in so far as is material for the purpose of the instant case, include: -
- (d) that they are of different sexual orientation (in this Act referred to as the sexual orientation ground”),
- (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), and,
(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
- (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), and,
The expression ‘religious belief’is defined by s.2 of the Act as including religious background or outlook.
Section 28 of the Act provides, in effect, that a claim of discrimination must be grounded by reference to a comparator. However it is clear from the language of s.6(1)(a)of the Act that a comparator may be actual or hypothetical.
Subsection (1) of this section provides in relevant part as follows: -
- For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows: -
- (c) in relation to the sexual orientation ground, C and D are of different sexual orientations;
(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;
- (c) in relation to the sexual orientation ground, C and D are of different sexual orientations;
Finally, the provisions of s.37 of the Act are relevant in so far as the within claims are made on the religion ground. Subsection (1) of that section provides a saver or exception to the prohibition of discrimination on grounds of religion in the following terms: -
- A religious, education or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
- (a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.
- (a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
The legal principles applicable in a case such as this are well established and can be briefly summarised.
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
- The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court in Kieran McCarthy v Cork City Council Labour Court Determination EDA082 (December 16, 2008)).
The preferment of a less qualified candidate over one whose qualifications are superior is suggestive of irrationality and will normally be regarded as a fact of sufficient significance to raise an inference of discrimination. That approach is consistent with the decision of the Northern Ireland Court of Appeal inWallace v. South Eastern Education and Library Board[1980] IRLR 193. A similar approach was taken by the same Court inDornan v Belfast City Council[1990] IRLR 179. Here it was held that a prima-facie case of discrimination is made out where (a) it is established that the unsuccessful candidate is better qualified than the successful candidate and (b) the unsuccessful candidate is a woman and the successful candidate is a man. By parity of reasoning the same principle applies where the discriminatory grounds other than gender are relied upon.
The Court has also emphasised that discrimination is often rooted in the subconscious thought process of the discriminator. That was pointed out by Lord Nicholls of Birkenhead in the House of Lords decision inNagarajan v London Regional Transport[2001] UKHL 48. That case was followed and applied by this Court inNevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -
- Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
- 1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
Discussion and Conclusions
Both sides made extensive submissions to the Court regarding the composition of the Selection Panel and the extent to which it complied with rules and procedures for the filling of vacancies for the post of principal in primary schools set out by the Department of Education and Science. In that regard both sides referred the Court to the decision of Quirk J in Browne v Board of Management Rathfarnham Parish National School [2006].
The Court has considered those submissions and finds that they are not relevant to the matters it must decide in this case. The issue for this Court to decide is whether the Respondent infringed the Complainant’s rights under the Employment Equality Act and is not concerned with the extent to which the detail of the rules and procedures set out by the Department have been complied with or not. That is a matter for another Court.
Religious Outlook and Patronage / Pluralism
The Complainant grounded her claim in so far as it concerns religious belief on the contention that her views on religious control or patronage of schools and pluralism in education were canvassed in the course of her interview for the disputed post. She contends that since her views on that topic were canvassed it follows that they were regarded as a relevant consideration in making a selection for appointment to the post. A question thus arises as to whether those questions can properly be regarded as relating to her religious belief as that expression is statutorily defined. In that context, as earlier observed, for the purpose of the statute, religious belief includes religious outlook.
As stated in the report of the Forum the issues surrounding denominational control of schools are deep rooted in the history of education in Ireland since the introduction of the national school system in 1831. Originally the Catholic Church regarded it as a means of safeguarding against proselytism in schools. Over time the imperative of maintaining religious control of schools became emblematic of an ideology, shared by the Church and the State, and underpinned the view that religious belief and values should permeate all facets of education. That approach is reflected in the Rules for National Schools issued by the Department of Education in 1965, Rule 68 of which provides: -
- Of all the parts of the school curriculum Religious Instruction is by far the most important, as its subject matter, God’s honour and service, including the proper use of all man’s faculties, and affords the most powerful inducement to their proper use. Religious Instruction is, therefore, a fundamental part of the school course, and a religious spirit should inform and vivify the whole work of the school. The teacher should constantly inculcate the practice of charity, justice, truth, purity, patience, temperance, obedience to lawful authority, and all the other moral virtues. In this way he [sic] will fulfil the primary duty of an educator, the moulding to perfect form of his [sic] pupils’ character, habituating them to observe, in their relations with God and with their neighbour, the laws which God, both directly and through the dictates of natural reason and through the Revelations, and indirectly through the ordinance of lawful authority, imposes on mankind”.
The underlying rationale for centralising the role of religion in education, which is encapsulated in these provisions, is indicative of a particular traditional or orthodox religious outlook. The appropriateness of retaining that approach in education, including the desirability of continuing the system of religious patronage of schools, has, in recent times, become a matter of debate amongst stakeholders in education. That debate has also focused on the need for a more pluralist approach in education reflective of the changes in religious diversity, adherence and observance in Irish society. The Forum on Patronage and Pluralism was established by the Minister for Education and Skills so as to further that debate.
It seems to the Court that when viewed in its proper context, a person’s opinion on religious patronage of schools and on pluralism in education are matters that can properly be regarded as pertaining to his or her religious outlook, and consequently to their religious belief.
Comparator
The Respondent submitted that the Complainant’s claims cannot succeed because they are not grounded by reference to a valid comparator. In employment equality law the use of a comparator is an important evidential tool in contrasting the treatment of two people whose circumstances are similar except in respect to a protected characteristic or by reference to a prohibited criterion. A comparator may be actual or hypothetical. In so far as the Complainant’s claim is based on age the treatment of the successful candidate can be relied upon as she is ten years younger than the Complainant.
In so far as the grounds of religion and sexual orientation are concerned the position is less straight forward. The Complainant is a practicing Catholic. There was no evidence proffered on either side concerning the religion, or sexual orientation of the successful candidate. In the case of the religion ground, the Claimant does not base her claim on her adherence to a religious denomination,per se. Rather, it is based on the weight that she claims was given by the Selection Panel to the private views of candidate on the question of religious control, or patronage, and pluralism in education which, as the Court has already held, goes to the question of religious outlook. It goes without saying that two people who profess the same religion may have different opinions on that question.
There can be no doubt that the candidates were asked for their opinions on a submission made by the INTO to a Forum on Patronage and Pluralism in schools. In her evidence Sr C accepted that the Complainant was asked for her personal views on the content of that submission. In that submission the INTO expounded a position on the subject that differed from what some would regard as the orthodox stance of the Catholic Church on the importance of religious control of education and the centrality of religion in education. It advocated a broader acceptance of religious diversity in education and proposed,inter alia,changes to s.68 of the Rules for National Schools (the text of which is recited above). The INTO also advocated the repeal of s.37 of the Act which, in effect, allows for matters relating to the maintenance of a religious ethos in schools to be taken into account in the selection of teachers. These are issues that pertain to religious outlook, and in accordance with s.2 of the Act, are integral to the notion of religious belief.
The Complainant told the Court in evidence that she did not know why she was asked a question on this topic and that she did not know how to answer the question. It seems reasonable to infer from that evidence that the Complainant may not have answered the question in a way that Sr. C, or her colleagues on the Selection Panel considered satisfactory. There was no evidence of how the successful candidate answered the same question.
In these circumstances the Court accepts that in advancing her claim on the ground of religious belief the Complainant is entitled to rely on a hypothetical comparator whose views on religious patronage and pluralism were also canvassed but whose answer to that question was in keeping with the orthodox position of the Catholic Church on the subject or in line with what the Selection Panel considered appropriate.
Section 37 of the Act
It is the Respondent position, in the alternative, that if matters relating to religious belief where taken into account in the selection process (which is denied) s. 37 of the Act allowed them to do so without infringing the principle of equal treatment on grounds of religion. Section 37 of the Act does not provide an employer to which the section applies with an unfettered right to prefer one candidate over another by reference to their religious belief. At best, it allows for religious belief to be taken into account only where it is reasonable to do so in order to maintain the religious ethos of the school. Section 37 of the Act must also be interpreted and applied in conformity with Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupations. Article 4.2 of the Directive (upon which s.37 of the Act appears to be based) provides: -
- Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation's ethos.
In the instant case the Respondent did not adduce any evidence on which it could be held that the canvassing of the private views of candidates for the post in issue on the question of religious patronage and pluralism was reasonable or necessary in order to maintain the religious ethos of the school. Nor was there any evidence to suggest that whatever views the Complainant had on that topic would impact on her capacity to act in good faith and with loyalty to the school’s Catholic ethos.
For these reasons the Court has concluded that the questioning of the Complainant on her opinions on religious patronage and pluralism is a primary fact of sufficient significance to raise an inference of discrimination on the ground of religious belief within the statutory meaning of that term.
Sexual Orientation
In so far as the within claims relate to the sexual orientation ground, the Court cannot find any basis upon which that claim could be sustained. The primary fact contended for by the Complainant in support of this aspect of her claim is that she was asked in interview, and in the context of the INTO submission previously referred to, “what about the homos”. Sr C, who was alleged to have asked that question strenuously denied having uttered those words or having said anything to similar effect. Sr C’s evidence in that regard was corroborated by the other members of the Selection Panel who gave evidence. The Complainant’s evidence regarding that question was uncorroborated. In these circumstances the Court has concluded, as a matter of probability that the recollection of Sr C, and that of the other members of the members of the Selection Panel is to be preferred over the Complainant’s recollection.
Furthermore, and for the sake of completeness, it appears to the Court that even if such a question was asked (and the Court finds that it was not) it could not imply discrimination against the Complainant on grounds of her sexual orientation. The Complainant is not homosexual and no such orientation was imputed to her.
Qualifications
Finally the Court must consider the submissions advanced by the Complainant that her qualifications for the post in issue were superior to those of the successful candidate. If she succeeds in establishing as a fact that she was the better qualified candidate, the authorities indicate that this would be sufficient to shift the probative burden to the Respondent.
The Complainant had 12 years’ experience as a teacher including experience in the role of Deputy Principal in the respondent school. By contrast, the successful candidate had four years’ experience as a teacher and no experience in a post of responsibility. Further, the Complainant holds a master’s degree whereas the successful candidate does not but the Court was told that she holds a post-graduate diploma in education which, it was claimed, was at an equivalent level. Following subsequent enquiries, undertaken at the Court’s request, the Respondent’s legal representatives informed the Court that the relevant awarding university confirmed that the postgraduate diploma was in fact a level 8 qualification though mistakenly believed to be a level 9 qualification by members of the selection panel.
Reviewing the evidence the Court finds it extraordinary and somewhat incredulous that Sr C could dismiss the relevance of the Complainant’s academic attainment solely on the basis that it was obtained in the USA. Moreover, the Complainant receives a significant allowance in the nature of pay for the performance of her higher duties as Deputy Principal. Against that background it is puzzling that the members of the Selection Panel should dismiss her role and experience as Deputy Principal as being of no significance.
In the context of the post in issue the Complainant’s longer experience in teaching, her experience in acting as Deputy Principal of the school combined with her academic attainments lead inexorably to the conclusion that she was the more qualified of the two candidates in the impugned competition. That was accepted by the Chairperson of the Selection Panel, Mr H, in cross-examination by Counsel for the Complainant. Mr H was unable to offer any cogent explanation as to why the Complainant’s acknowledged superior qualifications were not reflected in marks awarded to her in the competition.
In these circumstances the Court is satisfied that a less qualified candidate was preferred for appointment over the Complainant and that an inference of discrimination on grounds of both age and religious belief is within the range of reasonable inferences that can be drawn for that primary fact.
Outcome
For the reasons set out herein the Court has concluded that the Complainant has established facts from which discrimination on grounds of religious belief and age can be inferred. Consequently, in accordance with s.85A of the Act the burden of proving, on the balance of probabilities, that the Complainant was not the victim of discrimination rests with the Respondent.
InEleanor O’Higgins v UCDthis Court pointed out, in reliance on the decision of the Court of Appeal for England and Wales inWong v Igen Ltdand others[2005] EWCA Civ 142, that where the probative burden shifts the Respondent should be required to show a complete dissonance between the relevant discriminatory grounds and the impugned act or omission alleged to constitute discrimination. Hence, where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. Moreover, inNevins, Murphy, FloodvPortroe Stevedores Limitedthe Court adopted the reasoning of the Employment Appeals Tribunal for Great Britain inBarton v Investec Henderson Crosthwaite[2003] I.R.L.R. 322, to the effect that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden. The Court adopts that reasoning in this case.
In considering if the Respondent has discharged the probative burden that it bears the Court has carefully evaluated the evidence tendered on how the impugned decision was reached. The notes taken by individual members of the Selection Panel were not retained and given the lapse of time since the events giving rise to this claim the recollection of those who gave evidence was understandably impaired. Even taking account of these considerations the testimony proffered to the Court by the members of the Selection Panel on the reasons for their decision was couched in vague and general terms and the Court found it unconvincing. In particular no cogent explanation was provided as to why the successful candidate was preferred over the Complainant who, in overall terms, was clearly better qualified both in terms of her experience and her academic attainment.
In these circumstances the Court has concluded that the Respondent has failed to establish the absence of discrimination on either the religious belief ground or on the age ground. Accordingly, the Court must hold that the Complainant is entitled to succeed on both of those grounds. For reasons already given, the Court must hold that the Complainant cannot succeed in her claim in so far as it is grounds on sexual orientation.
Disposal
The appeal in so far as it relates to the finding of discrimination on grounds of religion and age is disallowed. The appeal in so far as the finding of discrimination on grounds of sexual orientation is allowed.
Redress
In relation to redress, the Court awards compensation in the amount of €54,000 for the effects of discrimination suffered by the Complainant.
For the avoidance of doubt, this award is not made in respect of remuneration.
Signed on behalf of the Labour Court
Brendan Hayes
5th October, 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.