DEC-E2016-074

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-074

PARTIES

A Prospective Employee

-v-

A Gaelscoil

File Reference: EE/2013/630

Date of Issue: 9th May 2016

1. DISPUTE

This concerns a claim by the Complainant that she was discriminated against by the Respondent on the grounds of age contrary to Section 6(2)(f) and also in contravention of Section 8 of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) in relation to her non-selection for employment.

The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 27th November 2013. By way of Decision (DIR-E2014-005) dated 25th November 2014, the Complainant was granted an extension of time to twelve months for the purposes of referring this complaint pursuant to Section 77 of the Acts. On 31st March 2016, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 8th April 2016. Both Parties represented themselves with the Principal and two members of the Board of Management attending to give evidence on behalf of the Respondent. All written and oral evidence and submissions presented including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. At the outset, I confirmed the nature of the Complainant’s claim and outlined the relevant legal provisions in lay terms. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.

This Decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

By way of background, the Complainant left the education system after her Leaving Certificate. After a career in a Bank and rearing her family she had returned to college as a mature student to train as a teacher. She excelled and obtained the necessary qualifications to teach languages including Irish at secondary school level and is a registered/vetted secondary school teacher. She has also acquired experience of teaching disadvantaged children over the years. However, she has found it difficult to develop a career in teaching following the completion of her studies. Whilst her younger counterparts had all obtained permanent work, she struggled to obtain substitute work, and to date has been unable to secure a permanent teaching contract. She attributes this to her age and not having the right contacts.

In November 2012, the Complainant saw an advertisement for a full-time Special Needs Assistant (hereinafter ‘SNA’) with the Respondent, a primary level Gaelscoil. The advertisement stated that fluency in Irish was essential and the required qualification was a Junior Certificate. She felt she was overqualified and would have preferred a secondary school teaching position but as it was full-time and she needed the work, she decided to apply. She also had fluent Irish, experience of working with children with learning difficulties, previous work experience in all areas of education including primary level and prior work experience as a resource teacher in other local schools. Additionally as a mature person, she had a broad range of experience of dealing with people and as part of a team. She felt that she had to be the best qualified person for the job and would get it if fair procedures were applied. She completed the standard application form and submitted her CV, neither of which referred to her age.

She was called for interview for the post in question on 3rd December 2012 and whilst waiting in reception, was surprised to overhear a lot of talking and discussion in English in a Gaelscoil. The Principal, Mr P, then brought her into the staff-room where she met two other candidates who looked younger and did not speak much Irish. She was then called into her interview which was conducted through Irish. Most of the questions at the interview related to her qualifications and previous experience. There were other questions about the role of the SNA, the relationship with other members of the team and parents, etc. She said that she was also asked more difficult questions that were not on the pre-set list which was subsequently furnished to her. She felt that the role had been pitched at an unrealistically difficult level and that the questions would have been difficult for a person to answer in English let alone Irish. She felt that because her interview had been conducted through Irish, she was unable to elaborate to the same extent as an interview conducted in English would have allowed, it being her everyday language. She had not been offered the option of being interviewed through English.

The Complainant contended that she had been reliably informed that proper procedures had not been followed in relation to the interview process. She discovered that some of the other candidates which she believed were younger than her and not as qualified were allowed to conduct their interview through English despite the advertisement stating that Irish fluency was essential. She wrote a letter expressing her disillusionment with society in general in Ireland and setting out her concerns regarding the selection process for the position in question to a former member of the Board of Management which he passed onto the Principal, Mr P. In particular she alleged that younger candidates had been allowed to conduct their interviews through English and had therefore been treated more favourably. She took a response from Mr P explaining its reasons for interviewing some of the candidates bilingually as confirmation of this unfairness. When questioned on this point, she said that she did not wish to reveal her source.

The Complainant was of the view that when the interview panel noticed that she was more mature (in her late fifties), they had no interest in her as a candidate. She said that this was borne out by the marks awarded, a copy of which had been enclosed with Mr P’s letter along with the list of preset questions and interview notes. In particular, she felt that the marks awarded to her under the various criteria were low given her qualifications and relevant experience and she wanted to know where she had lost marks. She took particular issue with Mr P’s marking sheet and the marks given in relation to ‘Suitability of Qualifications’ where she had received 12 marks out of a possible 20 marks and ‘Presentation at Interview’ where she had only received 10 marks out of a possible 20. She also felt that the marks allocated for ‘Teamwork and Flexibility’ criteria did not reflect her Bank experience. She did not accept that the marking in relation to ‘Suitability of Qualifications’ were in relation to the SNA role in question and not actual qualifications. She felt she had performed well under the other headings relative to the other candidates. Overall, she questioned the authenticity and accuracy of the marks and indeed whether five candidates had been interviewed at all. She also suggested that as the SNA was to care for a very challenging child, a younger person had been sought. She had ranked third out of five candidates.

It was put to the Complainant that her previous experience as a resource teacher was quite different to that of an SNA and that the successful candidate had previous SNA experience and had also been interviewed through Irish. When asked if she had sought any feedback, the Complainant said that she had not as she had no confidence in the process. She felt that it was unprofessional for Mr P to notify her by telephone that she had been unsuccessful and that she should have been informed in writing of the reasons. She denied that he had told her that she would be welcome to apply for any future positions. Overall, she submitted that the interview process lacked openness, fairness and transparency. She submitted that she had been discriminated against either directly or indirectly on the grounds of age.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

The Principal of the Gaelscoil, Mr P, and a member of the Board of Management, both of whom were on the selection panel gave evidence wholly refuting the Complainant’s allegations, which they said had caused them considerable disappointment. They strived to undertake any recruitment competitions in an open, fair and transparent manner in accordance with Department of Education and Skills guidelines. They were grateful for all the applications and would hate to think that anyone went away feeling that they had not been afforded a fair recruitment process. Mr P outlined the history of the Gaelscoil and the background circumstances to the SNA position in question. The role had been sanctioned by the Department to cater for the needs of a pupil with exceptional care needs. As it materialised, the position had only lasted for six months as the pupil in question moved to another school with a special needs unit.

Mr P outlined the selection process for the SNA position in question. The position was initially advertised on www.EducationPosts.ie and contained a requirement for Irish fluency. Candidates were invited to apply by post using the standard application form addressed to the Chairperson. Mr P explained that at a subsequent meeting regarding the SNA appointment, relaxing the Irish fluency requirement was discussed as there was an apprehension that this might limit the pool of candidates. A corresponding advertisement was placed on the Respondent’s website and did not mention any requirement for Irish fluency as the selection panel wanted to attract as many applicants as possible for the SNA role. Although the panel were of the opinion that Irish fluency would be desirable in the context of the school’s ethos, the paramount consideration was to find the most suitable candidate to meet the pupil’s immediate and significant care needs. Additionally, there is no requirement for an SNA working in national schools to have fluency in Irish. Both advertisements were bilingual.

Mr P confirmed that a selection panel was assembled comprising of Mr P as Principal, a member of the Board of Management (both required by Department guidelines) and a female Principal from another Gaelscoil as an ‘external assessor’. The selection panel members were all very experienced interviewers and particularly in this area. They met and decided on five criteria for the position, namely, (a) Suitability of Qualifications, (b) Professional Ability, (c) Teamwork and Flexibility, (d) Experience and (e) Presentation at Interview. As there were just five applicants for the position, the selection panel decided to invite all of those to the interview so there was no shortlisting. The specifics of the position and special needs of the pupil in question were not made known to any of the candidates for confidentiality reasons. The selection panel was unaware of the ages of any of the candidates or the Complainant as there was no facility for entering their ages or dates of birth on the standard application form. As far as the selection panel was concerned, age was of no relevance to the position in question. None of the candidates for the position in question were personally known to the selection panel.

As there was no strict requirement that the post in question be filled by a fluent Irish speaker for the reasons already outlined, the letters inviting the candidates to interview were bilingual, being a departure from the norm. Proficiency in Irish was not a criterion and was simply the language of communication during the process, where possible. The interviews were also conducted bilingually where it was felt that candidates had difficulty understanding and answering the questions. Of the five candidates, three of the candidates had their interviews conducted completely or almost completely in Irish, including the Complainant and the successful candidate. The interviews for the other two candidates were conducted almost completely in English as they had little or no Irish. At no time did the Complainant indicate that she would prefer to be interviewed in English and the panel felt she seemed quite comfortable and confident conversing through Irish. Mr P also explained that the pre-set list of interview questions was intended as a guide for the interview panel and only some of the 36 listed questions were put to any one candidate. He explained that additional questions may have been asked to get a better indication of the candidate’s broader understanding of the SNA role with the specific pupil’s needs in mind. All questions asked of the Complainant were relevant and appropriate as borne out by the interview notes submitted. He also outlined the key areas where the successful candidate had fared better than the Complainant and in particular, confirmed that she had more relevant primary school and SNA work experience.

After the last candidate was interviewed, the members of the selection panel separately completed a form entitled ‘Criteria and Marking Scheme for SNA Position’. The Chairperson then totaled the combined marks and compiled a table of total marks obtained by each of the five candidates (20 points were available for each of the five pre-set selection criteria and were each marked by the three interviewers so that candidates were scored out a total of 300 marks). Mr P explained that the candidates were assessed in relation to the specific requirements of the post in question under the five pre-set criteria and marks were awarded positively rather than deducted as contended by the Complainant. The same marking scheme was applied to each of the candidates. The table indicated that the Complainant had ranked third out of the five candidates and the candidate with the most marks was therefore appointed. Mr P confirmed that he had telephoned all of the candidates to inform them of the outcome and thank them for their applications. He also told them to feel welcome to apply for any positions arising in the future.

Overall, the Respondent contends that age was quite simply not a factor that received any consideration from the selection panel and nor did ‘having the right contacts’ play any part in the selection process for the SNA position in question. The selection process was conducted openly, fairly and transparently and in accordance with Department guidelines as borne out by the detailed records submitted in evidence. The Complainant was not treated more favourably or any differently from any other candidate and therefore has not made out a prima facie case of discrimination on the grounds of age or otherwise.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

Section 6(1) of the Employment Equality Acts provides 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)(f) of the Acts defines the discriminatory ground of age as follows - "as between any two persons, ... that they are of different ages." It follows therefore that the Complainant must be the subject of less favourable treatment in comparison to another person on the grounds of age i.e. because she was older than the successful candidate. Section 8 of the Acts prohibits discrimination on any of the grounds in relation to access to employment. The issue for decision by me in this case, then, is whether or not the Respondent discriminated against the Complainant on the grounds of age as contended, in terms of Section 6(2)(f) and Section 8 of the Acts in relation to her non-selection for the SNA position in question.

Section 85A of the Acts sets out the burden of proof which applies to all claims of discrimination and requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. When investigating a complaint of discrimination, the role of the Tribunal (now WRC) also includes undertaking an examination of any conflicts in the evidence presented by the Parties to arrive at reasoned findings of fact.

Unlawful discrimination in any circumstances and particularly in relation to a recruitment process is rarely overt and may not even be intentional but merely based on an assumption that a candidate would not have fitted into a particular role. Recognising the difficulties in proving discrimination, the UK House of Lords set out guidance in Glasgow City Council -v- Zafar (1998) 2 All ER 953 as adopted by the Irish Courts and employment fora including: “At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.'” Therefore, the Complainant must establish a factual matrix from which it can be inferred that discrimination has occurred on the balance of probabilities.

In a National School -v- A Worker (EDA1515), the Labour Court upheld a determination of the Equality Tribunal that the complainant, a school deputy principal, was discriminated against when applying for the position of principal. It applied principles it had elucidated in O’Higgins -v- University College Dublin (2013) E.L.R. 146 (upheld by the High Court) to assess whether the complainant had established a prima facie case of discrimination with regard to a recruitment and interview process:
“1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination;
2. 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 facts;
4. 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 result.
6. 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.”

Having examined the selection process coupled with the underlying documentation and the evidence proffered on behalf of the Parties, I am satisfied on the balance of probabilities that there is no clear evidence of unfairness or manifest irrationality that could give rise to an inference of discrimination on the grounds of age, either directly or indirectly, and in particular based on the following findings of fact:

No issue was taken with the composition of the selection panel. There was no evidence of any connection between the successful candidate and the members of the selection panel.

There is no obvious irrationality in relation to the pre-set selection criteria and interview marking matrix for the position in question which scored the candidates on the key requirements for the SNA role. I am satisfied with the explanations given on behalf of the Respondent in relation to the various criteria and how the Complainant was scored vis-à-vis the successful candidate.

There was no evidence that the selection panel was aware of the candidates’ ages at the interview and indeed, the Complainant confirmed that she had not included her date of birth in her standard application form or on her CV submitted for the SNA position in question.

I am satisfied that the selection process in question was conducted openly, fairly and transparently in accordance with Department guidelines and age was not a factor in the selection panel’s considerations. Therefore, I have no reason to question their conclusion that the successful candidate better met the particular requirements of the SNA role in question.

Given the absence of any evidence of the candidates’ ages, it is too much of a leap to conclude that as the younger candidates may have been less proficient in Irish, they were treated more favourably by being permitted to have their interviews conducted primarily through English. In any event, this is dispelled by the fact that the successful candidate was interviewed through Irish.

Having returned to education as a mature student and qualified as a teacher, the Complainant’s disappointment and frustration at not securing the SNA role in question and indeed her difficulties in securing a full time teaching position are totally understandable. However, I am not satisfied in this particular instance that either overtly or covertly, directly or indirectly, her age was an influencing factor.

5. DECISION

I have concluded my investigation of this complaint and based on the aforementioned, find that pursuant to Section 79(6) of the Employment Equality Acts, the Complainant has not established a prima facie case of discrimination on the grounds of age contrary to Section 6(2)(f) and Section 8 of the Acts in relation to her non-selection for the SNA position in question. Therefore no onus shifts to the Respondent to rebut any inference of discrimination and this complaint is not upheld.

Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

____________________

Aideen Collard

Adjudication / Equality Officer

9th May 2016