DEC-E2016-104

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2016-104

PARTIES

A Complainant

(represented by Mr. Derek Dunne B.L.

on the instructions of Dobbyn McCoy Solicitors)

and

The Board of Management of a Secondary School

(represented by Mason Hayes & Curran Solicitors)

File References: et-159591-ee-15

Date of Issue: 15th July, 2016

1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender, civil status and family status contrary to sections 6(2)(a), 6(2)(b) and 6(2)(c) of the Employment Equality Acts in terms of access to employment, conditions of employment and discriminatory dismissal.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 14th September, 2015. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 19th February, 2016 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the complainant on 29th October, 2015 and from the respondent on 27th January, 2016. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 28th April, 2016.

2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

3. Summary of the Complainant's case

3.1 The complainant was employed by the respondent as a teacher under a fixed-term contract from 6th October, 2014 until 31st August, 2015. Prior to her employment in a fixed term capacity in 2014/15, the complainant had been engaged as a substitute teacher by the respondent covering for another teacher on maternity leave during the 2010/11 school year. The complainant was contracted to teach Business, Enterprise and Youth Leadership related subjects during the school year 2014/15 and was working approx. 7 hours 20 minutes per week.

3.2 The complainant commenced a period of maternity leave on 20th April, 2015 and gave birth to her child on 6th May, 2015. The complainant spoke to the Acting Principal, Mr. A, prior to commencing maternity leave and was informed that the business hours for which she was employed may have to be absorbed for the 2015/16 academic year and that “the existing staff members would have to be looked after first”. The complainant’s husband, who was also employed by the respondent as a teacher, was informed by Mr. A on 20th May, 2015 that there were too many business teachers in the school and that the business hours for the academic year 2015/16 would have to absorbed and that existing staff members would have to be looked after first. The complainant submitted that Mr. A also informed her husband during this conversation that all existing fixed term posts would have to be re-advertised in accordance with the “Ward Circular” (i.e. Circular Number 23/2015 from the Department of Education and Skills).

3.3 On 28th May, 2015 the complainant’s husband was informed by another staff member that the business hours part of the fixed term contract had been advertised on the website www.educationposts.ie. The complainant submitted that she had not been included on the respondent’s list of text recipients for the purposes of school related notifications and that this was the first she had heard about the position being advertised. She claims that the respondent’s failure to notify her about the advertisement of this position was in breach of its statutory obligation to inform teachers on fixed-term contracts about vacancies arising. The complainant claims that she only became aware of the advertisement by chance and she submitted that the fact she learned of this before the deadline and ultimately managed to submit her application for the post before the expiration of the deadline does not excuse the respondent of its statutory obligations in this regard.

3.4 The complainant’s husband met Mr. B (who was the successful candidate following interviews for the business hours fixed-term contract for 2015/16) on 28th May, 2015 and was informed by him that management had given him certain advices in relation to the specific requirements for the position and the approach which he should take at the interview in order to optimise his chance of success. The complainant submitted that she was treated less favourably than this candidate as a result of being absent on maternity leave and not being present in the school prior to the interview process. The complainant denies the respondent’s contention that her husband had called to the office of the Acting Principal, Mr. A, on several occasions prior to the interviews and had canvassed for the appointment of the complainant to the position.

3.5 The complainant was subsequently interviewed for the fixed term position on 25th June, 2015 but was informed the following day that she had been unsuccessful in her application. The complainant claims that she was fully qualified and had the relevant experience for this position as she had already been doing the business hours fixed term contract during the academic year 2014/15. The complainant submitted that she was the only one of seven teachers on Regular Part Time (RPT) hours during the academic year 2014/15 whose fixed term contract was not renewed for the following year. The complainant submitted that if she had been successful in this interview the respondent would have been obliged to award her a Contract of Indefinite Duration (CID) for the following academic year. The complainant claims that the reason why she was unsuccessful in her application for the fixed term contract for the academic year 2015/16 was directly attributable to her gender, family and civil status and that this amounted to discrimination against her contrary to the Employment Equality Acts.

3.6 The complainant submitted that she should not have been dismissed whilst on maternity leave and she claims that the Notice of Termination given to her by the respondent during this period is void in accordance with the provisions of the Maternity Protection Acts. The complainant claims that the termination of her employment while on maternity leave constitutes a discriminatory dismissal on the grounds of her gender contrary to the Employment Equality Acts.

3.7 The complainant also claims that she was subjected to discriminatory treatment by the respondent in relation to the allocation of substitute teaching hours during the period of her fixed term contract in the academic year 2014/15. The complainant submitted that she was allocated very few substitute teaching hours following the announcement of her pregnancy in December, 2014 despite having raised this issue with the Deputy Principal on a number of occasions.

4. Summary of the Respondent’s case

4.1 The respondent submitted that the complainant was employed as a teacher on a fixed term contract from 6th October, 2014 until 31st August, 2015. The complainant’s contract provided that her employment would cease on the expiry of the fixed term contract on 31st August, 2015 and it was submitted that she was fully on notice from the outset of her employment that it was for a fixed-term duration.

4.2 The respondent submitted that there had been a surplus of business teachers in the school for some time and that it was necessary to prioritise the timetabling of permanent teachers when allocating hours for the academic year 2015/16. The respondent accepted that the Acting School Principal, Mr. A, had a conversation with the complainant prior to the commencement of her maternity leave and that he advised her of this fact at that juncture. However, the respondent denies that Mr. A informed either the complainant or her husband “that existing staff members would be looked after first”. The respondent submitted that under the provisions of the Department of Education and Skills Circular Number 23/2015 it was obliged to publicly advertise all fixed term vacancies occurring in the school year 2015/15. The respondent submitted that it would have been unlawful and contrary to the directives of the Department of Education and Skills to have appointed the complainant to another fixed term position for the school year 2015/16 in the absence of a competitive process as had been requested by the school’s ASTI school steward (who was also the complainant’s husband).

4.3 The respondent sent out a text message to all staff on 9th June, 2015 informing them that vacancies for 2015/16 were advertised on www.educationposts.ie. The respondent believed at the time that this included the complainant. However, the respondent subsequently learned that through inadvertence the complainant was not on the list of text recipients. The respondent submitted that the complainant must have been on notice of the fact that she was not on the text list particularly as her husband was on the list but for whatever reason did not bring this fact to its attention. The respondent submitted that the complainant subsequently applied for the fixed term business position for the 2015/16 academic year prior to the deadline.

4.4 The respondent submitted that the business position which was advertised for the 2015/16 academic year was not the same in all respects as the position which the complainant had been performing on the fixed term contract. The complainant was interviewed for the position but was ultimately unsuccessful and she was placed fourth out of seven candidates following the interview process. The respondent denies the complainant’s contention that any unfair advantage was given to the successful candidate and submitted that neither the Acting Principal not the then Deputy Principals gave any advices to any of the candidates for appointment as to what was required for the position advertised. The respondent submitted that all candidates selected for interview were treated in exactly the same way in terms of the manner in which the selection and interview process for the fixed term business position was conducted. The respondent submitted that the successful candidate was selected purely on merit and it denies that the reason why the complainant was not selected for this position was in any way attributable to her gender (pregnancy/maternity), civil status or family status.

4.5 The respondent submitted that the termination of the complainant’s employment consisted only of the expiry of the fixed-term contract by the effluxion of time. The complainant did not have a contract of indefinite duration and the respondent submits that the termination of her employment without her contract being renewed was totally unconnected to her pregnancy or maternity and therefore, cannot be considered a discriminatory dismissal for the purpose of the Employment Equality Acts.

4.6 The respondent also denies that the complainant was subjected to discrimination on the grounds of gender, civil status or family status in relation to the allocation of substitute teaching hours during the academic year 2014/15. The respondent submits that its policy in relation to the allocation of substitute hours revolved around trying, insofar as possible, to allocate the required substitute hours to a teacher who was in a position to cover all or most of the classes belonging to the absent teacher. The respondent submitted that the complainant was not in a position to cover the full complement of classes required in the majority of substitute situations that arose during the academic year 2014/15.

4.7 The respondent referred to a number of cases in support of its case, including McBrierty –v- National University of Ireland Galway[1] and Pauline Mulcahy –v- The Minister for Justice, Equality and Law Reform and Waterford Leader Partnership Limited[2].

5. Conclusions of the Equality Officer

5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

5.2 Section 6(1) of the Employment Equality Acts provide that discrimination shall be taken to occur where “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)…..”. Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows – “as between any 2 persons, ... that one is a woman and the other is a man", section 6(2)(b) of the Acts defines the discriminatory ground of civil status as follows – “as between any two persons , …. that they are of a different civil status” and section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows – “as between any 2 persons, ... that one has family status and the other does not".

5.3 Accordingly, the issues for decision in this case are whether or not the complainant was subjected to discrimination on the grounds of gender, civil status and/or family status by the respondent in relation to the following:

1. the selection process for the fixed-term position for the academic year 2015/16;

2. the termination of her employment when her fixed term contract expired on 31st August, 2015; and

3. the allocation of substitute teaching hours during the academic year 2014/15.

In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

5.4 It is well established jurisprudence of the Court of Justice of the European Union (CJEU) (as has been held in the cases of Webb –v- Emo Air Cargo, Brown –v- Rentokil Ltd and Dekker –v- Stichting Vorm.) that women who are pregnant are to be afforded special protection in employment and their employment cannot be terminated from the beginning of their pregnancy until the end of their period of maternity leave (the protected period) save in exceptional circumstances unrelated to pregnancy.

5.5 I will firstly consider the issues identified in questions 1 and 2 above. In considering these issues, I note that it was not in dispute between the parties that the complainant was employed by the respondent on a fixed-term contract from 6th October, 2014 which was due to expire on 31st August, 2015. This was the complainant’s first fixed-term contract in the employment of the respondent having previously been engaged as a substitute teacher during the academic year 2010/11. Neither was it in dispute that the complainant informed the respondent about her pregnancy in December, 2014 and that she commenced a period of maternity leave on 20th April, 2015. The respondent gave evidence that it was obliged, under the terms of Circular No. 23/2015 from the Department of Education and Skills, to advertise all fixed-term vacancies occurring in the school for the 2015/16 academic year. It was not disputed by the complainant that the respondent was so obligated to advertise the fixed term positions and to carry out a selection process to fill the posts for 2015/16. However, the complainant has claimed that she was subjected to discrimination contrary to the Acts in relation to the manner in which the advertisement and selection process for the position was conducted.

Advertisement of Fixed-Term Positions

5.6 The first element of the complainant’s claim relates to the alleged discriminatory treatment regarding the advertisement of the fixed-term positions for 2015/16. The complainant has claimed that the respondent was in breach of its statutory obligations in terms of its failure to notify her about the advertisement of these positions. It was common case that the positions were advertised on www.educationposts.ie on 9th June, 2015 and that the respondent notified staff members by way of text message prior to the advertisement. The respondent gave evidence that through inadvertence the complainant had not been included on the list of text recipients at the start of the academic year 2014/15. As a result it transpired that the complainant had not been sent texts by the respondent relating to this advertisement or other school matters from the commencement of the school year. I accept the respondent’s evidence that the failure to include the complainant on the list of text recipients arose through inadvertence and that this matter was not brought to management’s attention prior to the advertisement of the fixed term positions on 9th June, 2015. Indeed, I note the respondent’s evidence that three other teachers had also been inadvertently excluded from the list of text recipients at the start of that academic year and that this matter was rectified immediately upon coming to the notice of management.

5.7 In the circumstances, I am satisfied that the complainant’s omission from the list of text recipients arose purely as a result of an administrative error. Furthermore, I am satisfied that this error occurred before the complainant had informed management about her pregnancy in December, 2014. I also accept the respondent’s evidence that it had no reason at the material time to believe that the complainant had not been notified of the advertisement by way of text message. Accordingly, I find that the respondent’s failure to notify the complainant about the advertisement of the fixed-term positions was not in any way attributable to the fact of her pregnancy or her absence on maternity leave.

5.8 The complainant has also claimed that she was subjected to discrimination while absent on maternity leave on the basis that the successful (male) candidate for the business fixed-term position was given certain advices by management as to specifically what was required for the position. There was a complete conflict of evidence between the parties on this issue and the complainant’s husband gave evidence that the successful candidate had informed him during a conversation that he had been given certain advices by management in terms of enhancing his prospects of being successful in the competitive process for the position. The successful candidate did not attend the oral hearing to give evidence on this matter. I also heard evidence from the Acting Principal (Mr. A) and the Deputy Principal on this issue and both emphatically denied that any such advices or unfair advantage had been provided by management to any of the candidates for the position during the period prior to the selection process. I have found both of these witnesses to be very credible and on balance, I prefer the respondent’s evidence on this issue. In the circumstances, I find that the complainant was not subjected to less favourable treatment by virtue of her absence on maternity leave in relation to this issue. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her gender (pregnancy and maternity leave), civil status and/or family status in relation to this element of the complaint.

Selection Process for Fixed-Term Business Position for academic year 2015/16

5.9 The next element of the complainant’s claim which I must consider relates to the selection process which was conducted by the respondent in relation to the fixed-term business position for the academic year 2015/16. The complainant claims that she was subjected to discriminatory treatment in terms of the manner in which the selection process was conducted and her failure to be awarded the contract following the completion of the process. I have taken note of the respondent’s evidence that the fixed-term business position which was advertised for the academic year 2014/15 was not the same in all respects as the position which the complainant had held on a fixed term contract basis the previous year and that a significant part of her curriculum had been absorbed into the roles of other teachers. In considering this issue, I have taken cognisance of the case of Client Logic Logic t/a UCAL -v- Kulwant Gill [3] where the Labour Court held that "Finally, the Court has previously held that in cases alleging an infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result". Thus, it is a principle that has consistently been followed by both Equality Officers and the Labour Court that it is not the Equality Officer’s role to examine whether the most meritorious candidate was successful in a selection process. Rather, the Equality Officer’s role is to examine and decide whether or not the selection process is tainted by discrimination i.e. in this case on the gender, civil status and family status grounds.

5.10 Having regard to the evidence adduced, I am satisfied that the interview board that conducted the selection process was properly constituted and that they conducted their business in accordance with accepted good practice. Furthermore, I am satisfied that I have not been presented with any evidence from which I could reasonably conclude that there was any element of unfairness or irregularity in terms of the manner in which the selection criteria was applied to the complainant's application during the interview process that was conducted in relation to the competitive process for this fixed-term position. In this regard, I have found the evidence of the three members of the interview board (who gave oral evidence at the hearing) to be very credible and consistent regarding the manner in which the selection processes was conducted. I accept their evidence that the complainant’s pregnancy, civil status or family status was not a factor which was taken into consideration when assessing her application for this position. I fully accept the respondent's evidence that the reason why the complainant was not successful in this competition was because of the fact that the successful candidate was deemed to be more suitably qualified for the position than the other candidates (including the complainant) that presented for interview.

5.11 Having regard to the totality of the evidence adduced, I find that the complainant has failed to raise a prima facie case of discrimination on the grounds of gender, civil status and family status in terms of the manner in which the selection process was conducted in relation to the fixed term business position for the academic year 2015/16.

Discriminatory Dismissal

5.12 The next element of the complainant’s claim which I must consider relates to the claim that she was subjected to discriminatory dismissal contrary to the Employment Equality Acts on the basis that her employment was terminated during the protected period of her pregnancy/maternity leave. It was not in dispute that the complainant was at the material time employed on a fixed-term contract which had commenced on 6th October, 2014 and was due to expire on 31st August, 2015. In the case of Melgar –v- Ayuntamiento de los Barrios the Court of Justice of the European Union (CJEU) held that: “… whilst the prohibition on dismissal laid down in Article 10 of Directive 92/85 applies to both employment contracts for an indefinite period and fixed-term contracts, non-renewal of such a contract, when it comes to an end as stipulated, cannot be regarded as a dismissal prohibited by that provision. However, where non-renewal of a fixed term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on the grounds of sex, contrary to Article 2(1) and 3(1) of Directive 76/207”. It therefore follows that the respondent has a full defence to the claim of discriminatory dismissal in the present case unless the complainant can demonstrate that the decision not to renew her fixed-term contract was tainted by matters connected with her gender (pregnancy/maternity), civil status and/or family status.

5.13 Having regard to the totality of the evidence adduced, I am satisfied that the termination of the complainant’s employment consisted only of the expiry of the fixed-term period of her contract by the effluxion of time. It was clear from the complainant’s written contract that her employment was for a fixed-term only and would expire upon the completion of the contract. The complainant commenced her period of maternity leave on 20th April 2015 but I am satisfied that she remained an employee of the respondent for all intents and purposes until the expiry of her fixed term contract of employment on 31st August, 2015. As I have already stated in paragraph 5.10, I am satisfied that the reason why the complainant’s fixed-term contract was not renewed was in no way attributable to her gender (pregnancy/maternity), civil status and/or family status. Accordingly, I find that the respondent did not dismiss the complainant in circumstances amounting to discrimination on the grounds of gender, civil status and/or family status contrary to the Employment Equality Acts.

Allocation of Substitute Teaching Hours

5.14 The final element of the complainant’s claim relates to the alleged discriminatory treatment in relation to the allocation of substitute teaching hours during the period of her fixed term contract. Having regard to the totality of the evidence adduced, I am satisfied that the complainant has not adduced any evidence from which I could reasonably conclude that she was treated less favourably on the grounds of her gender (pregnancy), civil status and/or family status in relation to the allocation of substitute hours during the period of her fixed-term contract. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination contrary to the Employment Equality Acts in relation to this element of her complaint.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the respondent did not discriminate against the complainant on the gender, civil status and family status grounds pursuant to sections 6(2)(a), 6(2)(b) and 6(2)(c) of the Acts and contrary to section 8 of the Acts. Accordingly, I find in favour of the respondent in this case.

______________

Enda Murphy

Equality Officer/Adjudication Officer

15th July, 2016

[1] DEC-E2007-070

[2] [2002] 13 E.L.R. 12

[3] EDA0817

EMPLOYMENT EQUALITY ACTS