DEC-E2016-056

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-E2016-056

PARTIES

An Employee v A Board of Management

File reference: EE/2014/515

Date: 4th April 2016

1. The Claim

1.1 This claim concerns a claim by the Complainant that she was discriminated against on the grounds of age when the Respondent (hereinafter the “Respondent”) appointed a younger, less experienced colleague with less academic qualifications to the position of Deputy Principal on the 31st March 2014 which resulted in her discrimination on the grounds of age contrary to Section 6 (2)(f) of the Employment Equality Acts (hereinafter the “Acts”).

1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 25th September 2014 under the Acts.

1.3 In accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Caroline McEnery, an Adjudicator, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.

1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 13th October 2015 and the 25th January 2016.

1.5 The Respondent attended the hearing along with their representatives. The Complainant represented herself with the assistance of her husband.

1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 84 (3) of the Workplace Relations Act 2015.

2. Complainant’s Submission

2.1 The Complainant stated that she was discriminated on the grounds of age when the Respondent appointed a younger, less experienced colleague with less academic qualifications and no relevant managerial track record to the position of Deputy Principal on the 31st March 2014. The Complainant stated that the process put in place negated her superior experience, qualifications and suitability to the advantage of a less-experienced, younger candidate.

2.2 The Complainant stated that the Principal and the Respondent were aware of the fact that if the Complainant was appointed to the position of Deputy Principal that the successor to the Complainants current role would be filled by way of seniority. This would mean that the most senior Special Duties Teacher would take the Assistant Principals post. The would impact on the school as a Special Duties’ Teacher role would be lost to the school as the moratorium on replacing existing Special Duties posts continues to be applied. The Complainant stated that the Respondent, in seeking to retain existing posts of responsibility, favored the appointment of the less experienced, non-post holding, younger candidate and in doing so discriminated against the Complainant on the grounds of age.

2.3 The Complainant stated that the successful candidate is 16 years younger than the Complainant and joined the staff in 2006. The successful candidate joined the Board of Management in October 2009 and served with the current Chairperson of the Board up until her appointment as Deputy Principal. The Complainant stated that she has more relevant work-experience, higher academic qualification, wider interaction with the school community and greater involvement with extra-curricular activities which are de facto related to her age and length of service in the school.

2.4 The Complainant stated that she believes the successful candidate could not bring a comparable CV to the selection process.

2.5 In addition, the Complainant stated the successful candidate’s youth and lack of a post of responsibility were given undue weight and that the Complainants experience, particularly that of having served in a role of Acting Deputy Principal for a year was discounted.

2.6 The Complainant stated that the successful candidate was given a role visiting primary schools promoting the school which to date no senior member of staff has been afforded.

2.7 The Complainant stated that she believes the involvement of the School Principal and the Chairperson of the Respondent throughout the selection process compromised its impartiality and ensure the entire process was weighted in favour of a the successful younger candidate.

2.8 The Complainant stated that the Principal agreed to be one of her referees and at no point did the Principal state that she had also agreed to act as a referee for the younger candidate. In addition, the Complainant stated that the Principal did not state she had a personal preference for the other candidate to the Complainant. The Complainant believes this was prejudiced.

2.9 The Complainant highlighted the following:

2.9.1 In furnishing applicants with a role template without any attempt to relate it specifically to the school the Complainant feels that the experience she had previously gained in the role as Acting Deputy Principal was easily discounted, despite the fact that she had been “highly commended” by the school evaluators at the time. The generic template left no scope for the Respondent to capitalize on this very relevant work experience and proven track record in the position of Acting Deputy Principal of the school.

2.9.2 The school is recognised nationally as a school of excellence and ranks highly in the secondary school community meaning that an advertisement for the position of Deputy Principal could, reasonably, be expected to attract highly qualified and experienced candidates. The Respondents decision to accept minimal academic achievements and not to seek relevant managerial experience from candidates, in the Complainants view has no rational basis, unless the aim was to favour a younger, less qualified candidate.

2.9.3 The Principal and Chairperson of the Respondent exercised undue influence on the deliberations of the selection Committee by the members dispensing individual marking of application and opting for an overall collegiate assessment. The Complainant stated this deviation from best practice resulted in the diminished weighting afforded to her greater experience and qualifications and thus facilitated the discrimination against her.

2.9.4 The Respondent did not sufficiently provide for a proper evaluation of proficiency in the Irish language, its use and promotion which is a strength for the Complainant. The interview was held in primarily English which is contrary to the ethos of the Gaelcholaiste where Gaeilge is the preferred mode of communication. The Complainant is stating that to conduct the interview power point presentation in English, rather than Irish advantaged the younger candidate.

2.9.5 The Chairman of the Respondent gave the Complainant his lowest mark for ‘Organisational Administrative Skills’ having established the Complainants lack of familiarity with the filing of October returns despite the fact that such work was not specified in the sample role of the Deputy Principal and was not considered to be within the remit of the Deputy Principal within the school. The Complainant also states that the Chairman specifically asked her about Apps for Management, a topic the Complainant was not familiar with. In addition, this question was not directed to all other candidates. The Chairman also asked the Complainant how she coped with disappointment, a question not included for other candidates.

2.9.6 In five of the seven competencies subject to assessment at interview the Principal gave the Complainant the lowest marks with a score of less than 50% on ‘Organisational Administrative Skills’. The Principal also penalized the Complainant for two to other categories crucial to the role of Deputy Principal. The Complainant believes these scores to be unfair, unjustified, and unsupportable and at variance with the independent assessment made of the Complainants management skills during a Whole School Evaluation carried out during her term as Deputy Principal.

2.10 The Complainant notes the decision to take this action was a personal decision and that whilst she tried to raise her concerns initially at the Board of Management level her efforts were unsuccessful in presenting any satisfactory explanation for the outcome and conduct of the appointment process. The Complainant notes her concerns were rebuffed and that the Board of Management chose to ignore her concerns and refused to entertain any further correspondence from her. In addition the Complainant notes that Respondent tried to accuse her of making “unfounded allegations” which they deemed “highly unprofessional”.

3. Respondent’s Submission

3.1 The Respondent states the Complainant was short listed and interviewed for the position but she lost out to another internal candidate. The Respondent states the Complainants first reference to an allegation that the issue was in any way connected to her age was in the Complaints Form of 25th September 2014.

3.2 The Respondent disputes and takes exception to the case being made by the Complainant.

3.3 The procedure mandated by the JMB guidelines were followed at all stages, including the appointment of a selection committee the majority of whom were independent of the School. The selection committee followed and administered its own procedures again in accordance with the guidelines. The competition was fairly run and fairly marked. There was no weighting in the process of the procedures for the purposes of disadvantaging the Complainant either by reference to bias or age. All the members of the selection committee were experienced, all carried out their duties diligently and all of them refute the allegation that they were either influenced by the Chairperson and/or the Principal or that they would yield to such subornation if same was sought to be exercised.

3.4 It is not accepted that the Complainant was the best qualified candidate for the job and the Respondent states the selection and marking by the members of the committee was on merit and on no other basis.

4. Findings And Conclusions

4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.

4.2 Section 6 (1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.”

Section 8 (1) of the Act provides:

“In relation to-

(a) Access to employment

(b) Conditions of employment

(c) Training or experience for or in relation to employment

(d) Promotion or re-grading, or

(e) Classification of posts,

an employer shall not discriminate against an employee or prospective employee….”

4.3 Discrimination

Section 6(1) of the Acts provides:

“Discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”, one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, age, civil status, religion, disability, race or a member of the traveller community.

4.3.1 Loss of Special Duties Post

The Complainant stated that the Principal and the Respondent were aware of the fact that if the Complainant was appointed to the position of Deputy Principal that the successor to the Complainants current role would be filled by way of seniority. This would mean that the most senior Special Duties Teacher would take the Assistant Principals post. This would impact on the school as a Special Duties’ Teacher role would be lost to the school as the moratorium on replacing existing Special Duties posts continues to be applied. The Complainant stated that the Respondent, in seeking to retain existing posts of responsibility, favored the appointment of the less experienced, non-post holding, younger candidate and in doing so discriminated against the Complainant on the grounds of age.

The Respondent states that to a certain degree the Complainants interesting analysis may be correct. She is the most senior teacher and it might well be the case that has she been appointed to this position that the knock on effect might be that one of the more junior posts of responsibility might have been lost. The Respondent states that nobody on the selection committee was aware of this or had given this any thought. The independent members of the selection committee knew nothing whatsoever about it. The Respondent states that the school probably would have lost an increment of €3,000 approximately by virtue of the loss of a post of responsibility – money which would not have gone to the school in any event.

The onus is now placed upon the Adjudicator to decide that if the Respondent, in seeking to retain existing posts of responsibility, favoured the appointment of the less experienced, non-post holding, younger candidate and in doing so discriminated against the Complainant on the grounds of age.

It may be the case that in deciding to award the Complainant with the position of Deputy Principal the impact on the school losing a Special Duties’ Teacher role would be lost was considered by the Respondent. However, there is insufficient informative evident to decide on the truth of this allegation or otherwise.

Therefore, I do not believe this to be a case of age discrimination nor has a case of prima facia age discrimination been presented to support this.

4.3.2 Job Analysis and Role Profile

In furnishing applicants with a sample template of the job specification without any attempt to relate it specifically to the school the Complainant feels that the experience she had previously gained in the role as Acting Deputy Principal was easily discounted, despite the fact that she had been “highly commended” by the school evaluators at the time. The generic template left no scope for the Respondent to capitalize on this very relevant work experience and proven track record in the position of Acting Deputy Principal of the school. In furnishing applicants with a sample template of the job specification without any attempt to relate it specifically to the school the Complainant feels that the experience she had previously gained in the role as Acting Deputy Principal was easily discounted, despite the fact that she had been “highly commended” by the school evaluators at the time. The generic template left no scope for the Respondent to capitalize on this very relevant work experience and proven track record in the position of Acting Deputy Principal of the school.

This is denied by the Respondent. It is stated that the template was drawn from JMB guidelines which in turn was drawn from a Department of Education Circular. It was not in any way intended to minimize or exclude the Complainants previous experience as an Acting Deputy Principal or to make it more easily discountable. The Respondent states it is perfectly rational to use the standardized definition of duties of a role which is the same regardless of which secondary school you are in. It is also stated it is up to each applicant for a post in their written application and their interview to highlight their previous experience. The job specification in no sense prevented the Complainant from so doing. The Respondent states that any failure to highlight the relevance of the Complainants experience that cannot and should not be laid at the door of the selection committee, board of management, Principal or Chairperson. The Respondent stated that the Complainant stating that the successful candidate held no such similar post as herself was untrue. The successful candidate has held a number of posts of responsibility in her previous school and acted in similar roles on a voluntary basis whilst in the school.

The Job Analysis/Role Profile was drafted by the Deputy Principal and Principal. This was forwarded to the selection panel. The Board has no input into this document. Therefore, in this respect the Respondent did not follow JMB guidelines in allowing the Board to approve in advance of the recruitment process.

However, it is important to note that the JMB guidelines are simply guidelines and not strict procedures. Guidelines allow for flexibility and scope to be ascertained by different recruitment panels.

It is the opinion of the Adjudicator that the Job Analysis/Role Profile had scope for the Respondent to capitalize on the Complainant’s very relevant work experience and proven track record in the position of Acting Deputy Principal of the school. For example section 4.6 the question on the application form states:‘what aspects of your recent experience, outlined above, have prepared you for the role of D.P.?’ The Complainant refers to her previous experience and outlines the duties she was involved in during her time as Deputy Principal. Section 4.5 asks for the applicants to ‘outline briefly your three greatest achievements with respect to the above responsibilities’ to which the Complainants refers to achievements which refer to her experience as acting Deputy Principal

However, should the Complainant have wished to bring this experience into her interview responses then she was not deterred from doing so, in the Adjudicators opinion.

It is this Adjudicators decision that the Complainant had the opportunity to refer to previous experience within her interview through her examples in response to set questions asked.

4.3.3 Selection Committee and Appointment Process

The Complainant stated that she believes the involvement of the School Principal and the Chairperson of the Respondent throughout the selection process compromised its impartiality and ensured the entire process was weighted in favour of a the successful younger candidate.

In January 2014 the Board were informed that the then Deputy Principal intended to retire. The Board considered the advertisement and announcement for the recruitment of a new Deputy Principal. The successful candidate who was also a member of the Board, absented herself from all discussion or decision making in relation to the Deputy Principal Post. The Respondent states on the 3rd March 2014 the Board chose a selection committee on the basis that there would be an independent chairperson, two Board nominees and two patron nominees in accordance with JMB guidelines. The Board nominated the Principal and its Chairperson and sought availability of person identified as candidates to be the independent chair of the committee. The Board took the decision that the interview would be bilingual and as matters transpired the entire committee was fluent in Irish. All the members of the committee were experienced and all were familiar with the obligations attaching to the role of selection committees. The procedure mandated by the JMB guidelines were followed at all stages, including the appointment of a selection committee the majority of whom were independent of the School.All the members of the selection committee were experienced, all carried out their duties diligently and all of them refute the allegation that they were either suborned by the Chairperson and/or the Principal or that they would yield to such subornation if same was sought to be exercised.

The Adjudicator is of the belief that the selection committee was formed in accordance with the JMB guidelines.

The Respondent stated that the Board of Management choose the Principal due to the importance of the role and the Board of Management agreed with this appointment and agreed to allow the Chair of the Board of Management appointed also. There was no issue with the Board of Management considering the successful candidate being interviewed by a board member although she was on the board also. The Respondent stated that the Board of Management said they would appoint JOC also and no one else was considered. No other external candidates were considered.

However, considering the role of the Principal on the selection committee and as a referee for both the Complainant and the successful candidate this element of the recruitment process is biased and has resulted in an unfair process. Additionally, the Principal did not make it known to the Complainant that she was a referee for the other candidate and from the evidence presented this Adjudication Officers concludes that the Principals preference was for the other candidate but this does not link to age discrimination.

It is important to note that both the Principal and the Chairperson both sat on the Board of Management with the successful candidate which cannot be removed as an element of bias and lack of impartiality.

The above may have comprised the impartiality of the weighting in favour of the successful candidate considering the Principal had a preference for the successful candidate.

It is the Adjudicators decision that this, however, cannot be attributed wholly to age discrimination; not withstanding that the Adjudicator believes that based on the evidence presented personal bias existed for the successful candidate but with nothing to link it to age.

4.3.4 Collegiate Assessment

The Principal and Chairperson of the Respondent exercised undue influence on the deliberations of the selection Committee by the members dispensing individual marking of application and opting for an overall collegiate assessment. The Complainant stated this deviation from best practice resulted in the diminished weighting afforded to her greater experience and qualifications and thus facilitated the discrimination against her.

All six candidates were given marks on a short listing form. A decision was made by the selection committee that at the short listing stage they would not be marked individually but there would be a collegiate marking following discussions between them as to the content of the written applications. The decision to opt for collegiate marking was recommended to the committee by the Chairperson of the committee. As a result of shortlisting it was determined there would be four interviewees. The selection committee did not have the dates of birth of any applicants. It seems on evidence that the two candidates who were not short listed for interview were the two youngest candidates. A collegiate mark was subsequently agreed upon a review of each application. As per the JMB Guidelines the selection committee agreed the final list of shortlisted applicants for interview.

Collegiate marking was done on that basis for the purpose of screening. Several questions asked for one example from the applicants. It is noted that the successful candidate outlined several examples within an answer compared to the Complainant. It is noted that the successful candidate scored better due to this and this disadvantaged the Complainant.

The Respondent noted that this collegiate marking was only done at the screening stage. There was no discussion of scores until the scores were totaled.

The Adjudicator believes based on the evidence that the weighting of the Chairman of The Board and the Principals scores were biased. However, it was not based on age discrimination.

4.3.5 Oral References

The Complainant stated that the Principal agreed to be one of her referees and at no point did the Principal state that she had also agreed to act as a referee for the younger candidate. In addition, the Complainant stated that the Principal did not state she had a personal preference for the younger candidate to neither the Complainant nor the Respondent. The Complainant believes this was prejudiced.

In accordance with JMB Guidelines the referees in respect of the shortlisted candidates were contacted to give oral reference over the phone to be available following the conclusion of the interview and selection process. The Respondent states that these references formed no part whatsoever in the selection process but were there for the purpose of determining that, following the interview and selection, no impediment to appointment had been demonstrated by the referees which might prevent the first successful candidates from the role. Two of these references were obtained by Referee One and Referee Two and the Respondent states only those persons were familiar with the content of the references they procured and were not shared with any other member of the selection committee.

It is this Adjudicators opinion that the element of oral references does not prove itself to age discrimination.

However, it is to be noted that the conflict of interest is evident in the role of the Principal in this selection process. The recruitment process is flawed and unjust in the fact that the Principal acted as a referee for two candidates who were applying for the same role and was on the interview panel also. The Principal did not inform one or either parties to relieve the conflict of interest considering there was a personal preference for one of the applicants.

Whether the references formed no part whatsoever in the selection process is of no relevance to the reference element. Considering the role of the Principal on the selection committee and as a referee for both the Complainant and the successful candidate this element of the recruitment process is biased and has resulted in an unfair process. I am of the belief that the involvement of the Principal impacted on the absolute impartiality of the selection process and compromised the integrity of the recruitment process for the positon of Deputy Principal.

The Principal noted upon cross examination that she stated that during the oral reference that the Complainant would not be a real contender as the Deputy Principal as she wasn’t aware she would be promoted as Principal as she had not expressed interest in the role previously which is a personal opinion.

In addition, it is important to note that this Adjudicator does not agree with the statement that the references were not, once procured, shared with any other member than those involved in the selection committee as the Principal has given her reference to the Chair of the Interview Panel in advance of the interview so he too knew of the Principals preferred candidate so there was a potential bias in his judgment.

4.3.6 Interview Questions

The Complainant has stated that she was asked in regards to the October returns despite the fact that such work was not specified in the sample template of the job specification and was not considered to be within the remit of the Deputy Principal within the school. The Complainant also states that the Chairman specifically asked her about Apps for Management, a topic the Complainant was not familiar with. In addition, this question was not directed to all other candidates. The Chairman also asked the Complainant how she coped with disappointment, a question not included for other candidates.

The Respondent states that prior to interview the discussion between the members of the selection committee as to how the interview should be conducted and what questions should be asked. The following was put in place: all candidates would be asked the same questions, the listed questions would be circulated by email to be agreed, that in accordance with their nature of interest or expertise different members of the selection committee would ask different questions, each member of the selection committee would ask the same questions to each candidate. A date was set for interview and candidates called alphabetically. All questions were asked of all candidates. The Respondent states all candidates were asked about the October returns and apps for Management which is evident from the sample questions and interview notes. In addition, the Respondent stated that the Complainant was the only person who replied to the question in a non-committal and bald way stating “I don’t know much about that.”

Taking into account the local context given to the selection committee by the Principal there is a focus on information technology, therefore it would be consistent with questioning asked in the interview. However, this list of local context was not issued to the candidates nor was it outlined to them as criteria for the role.

It is important to note, as stated earlier, that JMB guidelines are simply guidelines and not strict procedures. Guidelines allow for flexibility and scope to be ascertained by different recruitment panels. Similarly, although the sample template of the Job Analysis was issued to all interested applicants and the interview questions were drafted based on the basic principles of the sample template these are not necessarily everything that would be incorporated into a role.

Interviews can consist of many different types of questions from closed, open ended to probing and it would appear all candidates were asked in relation to ‘Apps for Management’ upon review. Upon review the Job Analysis form states that the list is not exhaustive as it is not realistic to incorporate every factor or task within the sample. In addition, it is realistic to assume that at any type of interview a candidate may be asked a question that they may have no relevant experience to.

Following a review of the criteria supplied to the Adjudicator the Complainant appears to have responded to similar questions as other candidates, including the successful candidate. It is apparent that the Complainant and other candidates were asked in relation to Applications as it was under the heading of ‘Organisational and Administrative Skills’.

The Adjudicator is unsure if other candidates were subject to a sub-question referring to October returns. The selection committee have several references to October returns within the feedback relating to the Complainant including feedback comments from ANíB, SB and INíM of ‘returns’ and ‘she has no experience of October returns but is willing to learn’ and ‘oct return she doesn’t know anything about them but she knows about s+s’. From the relative feedback comments for the other comparative candidates there is not one note on October returns. ANíB noted of the successful candidate ‘returns x’ implying the candidate has no knowledge of returns. The Adjudicator is of the opinion that the Complainant was asked about the October returns and the other candidates were not. It is not realistic that the Complainant would highlight the fact she has no experience of October returns; however this is not relevant to age discrimination.

4.3.7 Marking

In five of the seven competencies subject to assessment at interview the Principal gave the Complainant the lowest marks with a score of less than 50% on ‘Organisational Administrative Skills’. The Principal also penalized the Complainant for two other categories crucial to the role of Deputy Principal. The Complainant believes these scores to be unfair, unjustified, and unsupportable and at variance with the independent assessment made of the Complainants management skills during a Whole School Evaluation carried out during her term as Deputy Principal.

The Respondent states the selection and marking by the members of the committee was on merit and on no other basis. The Respondent states that a degree of time was taken after each interview for the members to consider their marking but there were no discussions between the members of the selection committee as to the relative merits or de-merits of any of the candidates during the interview process. Following the conclusion of the process, all the members of the selection committee totaled up their marks for each candidate. Once this was completed the marking sheets were compared and totals were added up simply by adding the individual totals from each member of the Committee in respect of each candidate and coming up with an ultimate total mark. Marking at interview stage was individualized rather than a collegiate mark. The Principal fairly marked as she saw fit. The Respondent stated that the Complainant came third in the marking out of four candidates. At this point regard was had to the oral references obtained. On the 31st March 2014 the Board of Management determined to accept the recommendation of the Committee. In addition, during a Whole School Evaluation that was carried out during her term as Deputy Principal, the Principal was on Maternity Leave when this occurred.

It is the Adjudicators decision that the Principal’s score weighting were of the biggest difference in comparison to the others on the selection committee. However, this does not indicate age discrimination. It is the Adjudicators opinion that the Principal was biased in her preference prior to the recruitment process and this is evident to the disparity of the marking awarded to the Complainant by the Principal versus the marking awarded by other members of selection committee.

From the review of the interview feedback the Principal scored the Complainant 30 points in the ‘Relationship Management and Interpersonal Skills’ section. This is in stark contract from score of 40, 37, 42 and 44 awarded by others on the selection committee. This also is a striking 18 points difference to the marking given to the successful candidate. The Principal upon questioning stated that the Complainant did not give an example of conflict and she did not probe any further. However, this cannot be wholly attributed to the Complainant as she was not probed for an example and the questions asked was a close ended questions.

In addition under the ‘Self Awareness and Self-Management Skills’ section the Principal awarded the Complainant a score of 30 out of 50 which is the lowest in all the marks awarded in that section. In contract the successful candidate was awarded 48 out of 50 from the Principal. Again this represented 18 points in the difference. The Principal stated that she felt she did not hear a worked out example from the Complainant but did from the successful candidate.

4.3.8 Academic Qualifications and Experience

The Complainant stated that the successful candidate is 16 years younger than the Complainant and joined the staff in 2006. The successful candidate joined the Board of Management in October 2009 and served with the current Chairperson of the Board up until her appointment as Deputy Principal. The Complainant stated that she has more relevant work-experience, higher academic qualification, wider interaction with the school community and greater involvement with extra-curricular activities which are de facto related to her age and length of service in the school. The school is recognised nationally as a school of excellence and ranks highly in the secondary school community meaning that an advertisement for the position of Deputy Principal could, reasonably, be expected to attract highly qualified and experienced candidates. The Respondents decision to accept minimal academic achievements and not to seek relevant managerial experience from candidates, in the Complainants view has no rational basis, unless the aim was to favour a younger, less qualified candidate.

The Respondent states that the two who failed to short list were significantly younger. The internal candidate who ranked ahead of the Complainant but behind the successful candidate would have been younger than the Complainant but must closer in age to her than the successful candidate. The candidate who came last at interview was most likely the youngest. The Respondent states that the Complainants assertion that she is more qualified for the position is patently untrue and provides a grid to compare the two candidates. The Respondent also states that the Board would be hard pushed on analysis to determine who aggregate academic qualifications was better. The Respondent states both parties have significant academic qualifications, both have significant academic qualifications relating to the Irish language and both have academic qualifications relative to leadership and management. The Respondent states that the successful candidate is arguably more superior in this category. The Respondent also states there may be differences between the academic qualifications but it could not be said that the academic qualifications were so different to the extent that the Board of Management had accepted a less or under qualified candidate to the extent that a presumption in law could be implied that the choice of a less qualified or badly qualified candidate over the Complainant was one grounded on age.

The Respondent denies part two of this complaint and states that the Complainant stating the aim was to favour the younger, less qualified candidate is simply not true. Both candidates were highly experienced and highly qualified.

It is the Adjudicators decision that the Complainant and the successful candidate both have significant academic qualifications, both have significant academic qualifications relating to the Irish language and both have academic qualifications relative to leadership and management based on the evidence submitted by both the Complainant and the Respondent. The argument of the Complainant is that she has more years of experience in teaching and therefore has had prior experience in the Deputy Principal’s role therefore is more than likely to fit into the ethos of school of excellence. In addition she states in the the decision to appoint the successful candidate has no rational basis, unless the aim was to favour a younger, less qualified candidate.

If this were the case, in this Adjudicators opinion, then by nature the younger candidate, with less years of experience, would be reverse discriminated against and the recruitment process would be unjust in that regard also.

Based on the balance of probabilities it is the decision of the Adjudicator that there is no evidence to justify age discrimination under the heading of academic qualifications and experience.

However, this decision is not to disregard that the recruitment process may been unjust in many aspects and may have been a veneer in seeking to retain existing posts of responsibility or favour the successful candidate which the Adjudicator believes was the case based on the evidence presented.

4.3.9 Age and Posts Responsibility

The allocation of posts of responsibility including the post of Assistant Principal within the secondary school have been done historically by means of seniority. It follows that the older the teacher and the more seniority they have within the school the more posts of responsibility they will have. The Respondent states the Complainant is arguing for age based discrimination in favour of herself in circumstances in terms of reliance on posts of responsibility. The successful candidate held two posts of responsibility in her previous school but on appointment to this school ranked lowest in terms of seniority and eligibility for such posts.

The Complainant stated that she has more relevant work-experience, higher academic qualification, wider interaction with the school community and greater involvement with extra-curricular activities which are de facto related to her age and length of service in the school. The Adjudicator must decide if this leads itself to a case of age discrimination based on the succession of the younger candidate securing the role of Deputy Principal.

The successful candidate held two posts of responsibility in her previous school but on appointment to this school ranked lowest in terms of seniority and eligibility for such posts. However, this Adjudicator is of the decision that, experience or lack of, alone does not guarantee a candidate to a role.

Based on the appointment of the selection committee, the interview marking, the collegiate marking, the conflict of interest and the preference of the Principal for the successful candidate that recruitment process was not fair nor just. From this the successful candidate was chosen. Whether the successful candidate was chosen on merit or as a disguise to retain a Special Duties’ Teacher role cannot be verified. The Adjudicator can ascertain that the recruitment process was unfair, there is personal bias and there has been undue influence. There are large procedural flaws in the process followed which has resulted in a case of agediscrimination being taken. The Adjudicator does believe that there was prejudice however in this case based on the evidence but the evidence is not linked to age discrimination.

4.3.10 Conflict of Interest

The Respondent has stated in accordance with the HMB Guidelines, the selection Committee established at the outset that its members did not have a relationship to the candidates which might give rise to a conflict of interest. The Respondent states the Complainant was happy to have the principal on the selection committee at the outset and she was happy to have the principal as her referee. The Respondent stated that the willingness to act as a referee was having been asked to do so and the Principal was entitled to do so. The refereeing process and oral references had no role in the selection process and were only involved afterwards. The Principals involvement in relation to the references have nothing whatsoever to do with age.

The Principal was a member of the board, a party to the interview process and a reference for both the successful candidate and the Complainant. This promotes an undue influence on the deliberations of the recruitment process. The Principal did not make it known to the Complainant that she was a referee for the other candidate and that her preference was for the successful candidate.

4.3.11 Role Visiting Primary Schools

The Complainant stated that the successful candidate was given a role visiting primary schools promoting the school which to date no senior member of staff has been afforded.

The Respondent states this issue is wholly irrelevant and unconnected to the instant competition. This issue arose as staff representatives on the Board were asked whether they would go and promote the school in local primary schools and the successful candidate was one of those people who volunteered. It is not an official post or responsibility or a role and does not demonstrate preference or anything of the kind.

The Adjudicator is of the belief that the role of visiting primary schools, which was carried out by the successful candidate, does not lead itself to age discrimination.

4.3.12 English Language

The Complainant states that the Respondent did not sufficiently provide for a proper evaluation of proficiency in the language, its use and promotion which is a strength for the Complainant. The Complainant is stating the interview was held in English which is contrary to the ethos of the Gaelcholaiste where Gaeilge is the preferred mode of communication. The Complainant is stating that to conduct the interview power point presentation in English, rather than Irish advantaged the younger candidate.

The Respondent states that the Committee decided that there be an English element to the interview and it is denied that this element mitigated against the Complainant demonstrating her “superior Irish”. In addition, the Respondent states that the Complainant has better Irish than the successful candidates but that both are wholly fluent.

The Adjudicator is of the belief that the element of the English language being used to conduct a portion of the recruitment process does not lead itself to age discrimination. It is important to note that both candidates are wholly fluent Irish speakers therefore this element does not lead itself to a factor in a case of age discrimination.

4.3.13 Response of the Board

The Complainant notes the decision to take this action was a personal decision and that whilst she tried to raise her concerns initially at the Board of Management level, her effort to elicit any satisfactory explanation for the outcome and conduct of the appointment process were fruitless. The Complainant notes her concerns were rebuffed and that the Board of Management chose to ignore her concerns and refused to entertain any further correspondence from her. In addition the Complainant notes that Respondent tried to accuse her of making “unfounded allegations” which they deemed “highly unprofessional”.

The Board stands by their wording of “unfounded allegations” which they deemed “highly unprofessional”. The Respondent states that all of these allegations are wholly untrue, would be defamatory to the two persons concerned and are rejected by the two persons concerned. In addition, the Complainant was advised the procedure followed was mandated by JMB, was provided with diverse documents and information at her request and upon receipt of the Complainants letter the board indicated it would not partake in further correspondence. It is stated that the Complainant, five months after making her initial complaint of personal bias changed tact and brought this complaint; one of age discrimination. The vast majority of her grievances are unfounded on the evidence into an allegation of age discrimination by virtue of the one fact which nobody can deny, which is that she is significantly older than the successful candidate. However, the complaint of age discrimination has not been upheld.

5. Conclusion/Decision

5.1 I have investigated the above complaint and make the following decision in accordance with the relevant Sections of the Acts set out above and the following is my conclusion:

5.2 I find that the Respondent has not discriminated against the Complainant on the grounds of age.

6. Additional Comments

6.1 However, the Adjudicator is of the belief that the Board in their dealings with the Complainant were wholly inappropriate. Given the longevity of service, 29 years, of the Complainant, the way in which the Complainant was rebuffed was unnecessary and unprofessional. This Adjudicator believes that the Complainant did not have a satisfactory response from the Respondent and that led her to proceed down this route which was a difficult personal decision for her. The Complainant is a very genuine and committed employee who felt she was treated unfairly. The manner in which the Complainant was addressed specifically referring to letters containing the following ‘unfounded allegations made are highly unprofessional’ and ‘unfounded allegation and defamatory statements’ is unacceptable and disappointing in response to a genuine grievance. It is evident the manner in which the Complainant was treated was highly unprofessional and disrespectful to her service, contribution and right to raise a grievance as a valued employee.In addition, it is important for the Respondent to note that the manner in which the Complainant was written to does not exercise the ethos of the school in line with the values of the founding mission which is reportedly at the core of the school life.

____________________

Caroline McEnery

Adjudication Officer