DEC-E2016-043

EMPLOYMENT EQUALITY ACTS

DECISION NO: DEC-E2016-043

Ms C

(Represented by the Irish National Teachers Organisation)

And

Board of Management of School A

(Represented by Ms Ita mac Gruairc B.L, instructed by Mr Diarmuid O Cathain, solicitors)

File No: EE/2013/583

Date of Issue: 9th March 2016

1.The Dispute

1.1 The dispute concerns a claim by Ms C that the Board of Management of School A discriminated against her on the grounds of disability in relation to accessing a job and promotion contrary to Section 6(2)(g) and Section 8.1 of the Employment Equality Acts 1998 to 2011.

1.2 The Complainant referred her complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 4 Nov 2013.A submission was received from the complainant on 17 April, 2014. A submission was received from the respondent on 4 June 2014. On 7 September 2015, in accordance with his powers Sec 75 of the Acts, the Director delegated the case to me, Patsy Doyle, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part VII of the Acts. On this date, my investigation commenced. As required under S79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 September 2015 and reconvened on 6 November 2015. Supplementary information was sought from both parties which was submitted and commented upon promptly.

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

2 Summary of the Complainant’s Submission

2.1 The complainant is a qualified Primary School teacher. In 1981, she commenced working at the Respondent Deis school and worked in a myriad of roles culminating in being appointed Deputy Principal in 2008. This was a combined teaching and administrative role. She served for a period as acting Principal in 2011/2012. During this time, she steered the school through a difficult school inspection and let it be known that she was interested in Principal positions someday. She was extremely involved in the “ DEIS” model of education and in Church Music at the school. The complainant described a good working relationship with the Chairman of the Board of Management, Fr A. She had a recall of applying for other Principal positions and being discouraged by the Chairman of the Board as the school did not want to lose her. At the time referred to in the complaint, the complainant was fulfilling the role of Deputy Principal. She had a clear understanding that in the event that the Principal position were to become vacant at the school, she would stand a good chance of succeeding at interview given her positive track record at the school.

2.2 The complainant suffered from Ulcerative Colitis which caused her to have a period of absence on sick leave from the school in 2012. Prior to this she had made low grade adaptations at the school to accommodate her condition. With the assistance of the caretaker, she converted a toilet attached to her classroom as well as always sitting adjacent to the door at meetings. The complainant gave evidence that she was extremely ill in late 2012 and at one point was placed on a colon removal list. She made application to the school for retirement on the grounds of ill health.

On 11 January 2013, the complainant attended an Occupational Health appointment. She was deemed “not currently medically fit to work “and was to be reviewed in 3 months. Shortly after this in April 2013, the complainant was commenced on a new medication which managed her condition and from which she saw a marked improvement. She withdrew her application for retirement on the grounds of ill health. The complainant returned for Occupational Health review on 7th May 2013 and was cleared for returned to work on May 15th 2013. An extract from the medical report submitted states:

“No accommodation in her workplace or restriction of her duties is necessary at this stage. Future difficulties or flare up of her condition can unfortunately not be ruled out but this should not bar her return to work at the moment “

2.3 The Complainant returned to work on 15 May 2013 and immediately felt distanced by the Chair of the Board of Management. She had heard that the Principal was retiring and submitted an application for the position of Principal. The Complainant gave evidence that the retiring Principal was surprised at her application and asked her whether she was sure she wanted to apply for the position with her health history? In addition Fr A, Chair of Board of Management did not mention the position of Principal to her and it was her understanding that he was approaching other candidates to apply as she observed him in consultation and collaboration with the eventually successful candidate on a number of occasions before the interview. This was in marked contrast to his previous contact with her, prior to her sick leave where she understood from him that she would stand a very good chance if the position of Principal of the school ever came up.

2.4 The complainant received a copy of the agreed criteria for discussion at interview in advance and presented for interview on June 21 2013.The Criteria for Selection was based on

· Familiarity with current educational issues.

· Knowledge of Deis.

· Vision and Leadership.

· Catholic Ethos and Pastoral care.

· Performance at Interview and qualifications.

It was the complainant’s evidence that she was not questioned on 3/5 topics and was shocked on receipt of her markings that she had been marked down on these topics. These topics were

· DEIS

· Catholic Ethos

· Knowledge of current education.

She was also taken aback at the continued distance from the Chairman of the Interview Board, Fr A, who was also the Chairman of the Board of Management.

2.5 The Complainant attended a gathering of teachers later that evening and learned informally that interviews had been of varying lengths. Of three teachers interviewed internal to the school. The times were stated as.

1 1hr 10 mins (Eventual successful candidate)

2 50 mins (Another internal candidate)

3 The Complainant 45 mins.

2.6 On June 25th, the Complainant was informed by the Chairperson of the Board that she had been unsuccessful at interview. The complainant was particularly distressed and became further distressed at the manner in which the announcement of the successful candidate was subsequently communicated to the staff in the presence of outside delivery staff at a staff meeting half an hour later. The successful candidate had less experience than her. The complainant described being “heartbroken” but felt unsupported at the school with the exception of one member of the Board. She sought the notes and marks covering the interview.

2.7 In early July, prior to the breakup of school year, two teacher colleagues, (Ms A and B) informed Ms C that they had been to visit the Chairman of the Board Fr A at his home to express their concern directly to him at Ms C’s unsuccessful application for Principal. Ms C did not have prior knowledge of the visit. The discussions at Fr As’ house lasted an 1hr. Ms C told the Tribunal that both teachers came back to her reporting that Fr A had remarked “that it was a pity she was out” in response to a question from Ms A, which they interpreted as a reference to Ms C’s sick leave and disability. There were further discussions that Fr A had not been keen when Ms C applied for other Principal ships as she would be such a loss to their school. Ms C was very shocked at this development and approached her Union for advice. In September, 2013, the complainant met one of the interview board at a social gathering and he was keen that the complainant did not hold his decision in the interview against him.

2.8 The complainant received her score sheet and some notes from the interviewers. Only two of the external interviewer assessors took notes. At this stage, Ms C had formed the view that she had been unfavourably treated by the Board of Management in relation to her interview. She contended that it was “tainted with discrimination “citing that her sick leave through disability had coloured the view of the Chairperson of the Interview Board, Fr A. And that his remarks in particular were attributed to her disability and a contributory factor in not getting the job.

Furthermore, she held the view that the successful candidate was less qualified, had less leadership experience and the whole interview process lacked consistency in question formulation to candidates, duration of interviews or as a real attempt to capture teaching experience. She was also troubled by the lack of transparency in relation to note taking. On November 6 2013, the complainant lodged an EE2 form (S.76, right to information) on the respondent contending that she had been discriminated against on disability grounds. The papers were served on the Chairperson of the Board and sought:

· Copy of marking sheet for successful candidate

· Notes taken during the interview of the successful candidate

· Record of experience of successful candidate

· A full list of questions at interview

· Board of Management minutes in relation to the appointments process

· All other relevant material.

2.9 The respondent replied on the requisite EE3 form on 24th January 2014

· Discrimination was denied

· The complainant’s non appointment was due solely to not being the most suitable candidate.

The first three requests were declined on confidentiality grounds

· The remainder were declined by citing that the matter was not properly before the Equality Tribunal and the allegation lacked specificity.

2.10 The Complainant was unhappy with this approach and advanced her compliant to the Tribunal in April, 2014. At the time of the hearings the complainant had been on medically advised sick leave since December 2013.

2.11 The complainant representative, Ms O Connor submitted that the respondent misconceived the standing of the complainant to advance her case, given that she was all clear medically on return to work on May 15 2013. The complainant had discriminatory remarks made about her by the Chairperson of the Board of Management. The disparity in leadership experience between the successful candidate and the complainant was plain. The reference to qualification disparity between the candidates was withdrawn. The INTO representative requested the Tribunal to examine in particular the approach adopted by the Chairman of the Interview board who held the dual role of Chairman of the Board of Management on the complainant’s return to work in May 2013 and the “distanced approach” adopted which was in marked contrast with the parties previous working relationship. The Interview process was a continued cause for concern given the “mismatch” of questions to the criteria and an inability to establish just how questions were marked. There were insufficient notes, lack of feedback or transparency and an absence of an appointed timekeeper. The Complainant contended that the cumulative effect of these satisfied the Burden of proof necessary to move to the Respondent as provided for under article 31 of the Recast Directive.

2.12 The Complainants representative drew the Tribunal’s attention to extensive case law in the area:

1 Tesco Irl v Gerry Kirwan [1]

2 A Government Department v A Worker [2]

3 Rotunda Hospital/Mater Hospital v Dr Noreen Gleeson [3]

4 A Technology Co.v A Worker [4]

5 Meehan v Leitrim Co Council [5]

6 A National School v A Worker [6]

3 Witnesses For The Complainant

3.1 Ms A had been a Teacher for 17 years at the School. She described being shocked on hearing that Ms C had not succeeded at interview for the post of Principal and decided to go to see Fr A. She contacted him by text and he agreed to meet her and Ms B, a fellow teacher at the school. She did not notify Ms C of their intention. She challenged Fr A on the decision to overlook Ms C for appointment as Principal stating that “He was the only one who knew her” and that she held a very strong belief that the School needed Ms C in the role, given her past success in the role when she had substituted for the then Principal. Ms A told the Tribunal that Fr A responded by stating that he was bound by confidentiality but that

· Good Work was not enough

· “It was Pity she was out “

· “Sickness was not a factor”

· There were things that he could not divulge

· He agreed that the Community had expressed a wish to have Ms C as Principal

Ms A recalled that Fr A became angry when she recalled Ms B challenged him further by stating that “I get the feeling that you didn’t want Ms C”. This concluded the conversation as Fr A stated that he was staying on in his role as Chairman of the Board of Management.

3.3 Ms B had been a Teacher at the school for 22 years. She corroborated the recollections of Ms A and referred to a contemporaneous note of the meeting which she had recorded of her challenge on Fr A. I requested sighting of these notes and they were produced in a heavily redacted version. I will deal with the Respondent objection to these in the relevant section.

Ms B recorded that she had:

· Challenged Fr A on “Why did you not fight for her?” (Ms C)

· Fr A stated that “I can only fight if candidate is near the top “

· Ms B advanced the case that Ms Cs performance at school was what the school needed to turn itself around in the crisis it was in.

· Fr A stated that “It was a pity she was out “but that Sickness was not a factor. He states that he was prohibited from further discussion due to confidentiality. The Interview Board was elected by the Bishop.

Ms B recalled that Fr A was unhappy at Ms Cs’ reaction to the news of her non appointment. They ran into Fr A at a nearby hotel subsequent to that date and it was their recollection that they were ignored by him.

4 SUBMISSION ON BEHALF OF THE RESPONDENT

4.1 The respondent disputed all allegations of Discrimination. It was the Respondent case that the competition was conducted fairly and in accordance with regulations made by the Department of Education and Skills. The Respondent’s position is that the selection of the successful candidate was based entirely on merit. The Respondent had furnished the Complainant with form EE3 dated 24th January 2014, where discrimination was rebutted on the grounds that the complaint to the Equality Tribunal was misconceived.

4.2 In early May 2013, The Board of Management of the school were notified by the then Principal that he intended to retire from his position. The vacancy was advertised in accordance with normal procedures. The Respondent submitted the entire document referred to as “Board of Management of National Schools: Constitution of Boards and Rules of Procedure 2011” which governed the appointment procedure. The closing date for applications was 31 May 2013.

4.3 The Interview Board was assembled under the auspices of the Patron, the Bishop. Four Independent Assessors were appointed to work with Fr A, Chairperson of the Board of Management to select a Principal.

Sr A, Sr B, Mr A, Mr B. All of whom were highly experienced Interviewers and Educationalists.

A preliminary meeting of the interview Board was held in May to

1 Set down selection criteria

2 Prepare a marking scheme

3 Short List Applicants.

4.4 All applicants called for interview were required to be qualified primary teachers, have five years teaching experience and to hold a Catholic Religious Education Diploma. The Tribunal was shown a letter dated June 6 2013, which set down the selection criteria as

1 Familiarity with current education issues.

2 Understanding of education disadvantage-DEIS

3 Vision and Leadership

4 Catholic Ethos and Pastoral care

5 Performance at Interview and qualifications.

4.5 The list of applicants for the position was short listed to seven who were invited for interview: Four external and three internal candidates. Interviews were held on June 21st 2013.It was the Respondents case that all candidates were interviewed identically and in accordance with the stated objectives of the Procedures Document. Care was given not to differentiate between external and internal candidates and all candidates were interviewed for the same duration of time. The candidate who obtained the highest marks at the interview was recommended by the interview panel for appointment in accordance with due procedure.

The recommendations of the interview board were reported to the Board of Management after the interviews. The Board of Management approved the recommendation and sent that recommendation to the Patron, who duly ratified the decision. The Respondent was clear that none of the four Independent assessors were aware of the Complainant’s health issue or the existence of a disability. The Complainant was not questioned regarding any health issue that she may have had. They wanted the Tribunal to appreciate that the Interview was run in compliance with all Equality Legislation.

The Respondent furnished the Tribunal with a template of the 15 questions asked at interview. All seven candidates were marked on merit which resulted in the complainant being marked fifth in the ranking. The rankings had not been disclosed in advance of the hearing and were submitted by the respondent as part of my investigation. In addition, the respondent submitted a redacted copy of the successful candidate’s application form for the position.

4.6 On 2nd July, 2013, in response to a request from the Complainant, the Respondent furnished details of the records of the marks of the five Assessors from the interview which covered her individual presentation at interview. The Complainant followed this up with a request for the original marking sheets and all notes taken at interview under the Data Protection Act. On July 12th, 2013 the Respondent furnished notes from interview which were compiled by two of the Assessors and the Chairman as two of the remaining Assessors had not taken notes.

4.7 The respondent denied any undermining of the complainant’s position. The Board of Management did not accept that she had a disability as she was passed fit for return to work by an independent medical assessor in May 2013. The respondent contended that all candidates were interviewed in accordance with the same template of questions and in accordance with the same time scale. The respondent indicated that the Board of Management respected the complainants work at the school over the years but denied any change to “an atmosphere of coldness” following her return from sick leave or during the interview.

In the main, the respondent wanted the Tribunal to appreciate that the complainant was very upset at being overlooked for appointment as Principal but that the Interview Board followed the correct procedures and recommended the highest ranking candidate to the position in accordance with the rules set down by the Dept. of Education and Skills. The respondent denied ever influencing the complainant in her career choices in applying for other Principal positions in other schools. The respondent contended that the complainant was “ultra-sensitive “and that the disappointment at not getting the position of Principal was emotional and subjective rather than logical. It had nothing to do with discrimination. The complainant had presented as medically fit throughout her return to work and during the interview process and there were no visible signs of a disability.

In the concluding remarks of the case, the respondent impressed on the Tribunal that Med mark had endorsed the complainants return to work in May 2013, that all five assessors had cumulatively arrived at the fifth ranking place for the complainant, where there was a 94-mark differential between the successful candidate and the complainant. The Interview Board had acted with expertise, discretion, impartiality and there was no evidence of discrimination. The Respondent objected very strongly to the Equality Officer considering the submitted Aide Memoire of the conversation with Fr A, Ms A and Ms B in July 2013 in what was referred to as a “door stepping “episode.

· It should not be given the dignity of a hearing

· The location and tenure of the questioning was disgraceful

· No credence would be applied in a court of law due to the heavily redacted version submitted (reference to third parties was redacted)

· The respondent sought the expulsion of the document from the investigation.

5 WITNESSES FOR THE RESPONDENT

5.1 The Interview Panel.

Mr A

Mr A gave a detailed account of the preparation for and conducting of the interview process. He explained that he completed all required training for interviews. He brought a considerable background of experience in Education, Business and Counselling to the process. He had extensive experience in the role of Principal. He told the Tribunal that the set criteria laid down for the interview encapsulated “experience”. One response from a candidate is capable of covering a number of questions. It was his belief that the Interview process had been fair and equitable to all the candidates and that the Complainant had been dealt with fairly.

Mr B

Mr B was a highly experienced Principal, with a special interest in DEIS schools. He recalled that both the complainant and the successful candidate had a lot to offer. However, the eventually successful candidate was more concrete and definite in his answers. He agreed with the marking system. He was very clear that he “made up his own mind on interviews” and that questions can often fuse together which may explain the rationale behind some candidates, on reflection believing that they were not asked identical questions. He totalled up the markings. He recalled adhering to the selection criteria and the pre prepared questions.

Sr A

Sr A recalled that the interviewers worked in pairs while she maintained an Observer / listening role and did not ask any questions or take notes She brought a considerable breadth of experience, practice and education to the interview process and undertook on average 5 interviews per year.

Sr B

Sr B was an experienced Principal. She was trained in Interview procedures. She recalled the day of the interview and that there was a slight delay in commencing at 13.30hrs. She recalled that the complainant presented in an open and chatty style. She recalled that Fr A had kept his distance. She recalled working in a pair formation with Mr A. She recalled that the complainant did not elaborate on key points, but was certain that all questions were put to the complainant on the pre prepared question list. She went some way to explain that specific mention of “little words” can have a positive impact on decision formation at interview. Her notes were expansive and reflective of the selection criteria and pre pared questions.

5.2. All 4 external assessors were clear that the complainant was not asked any questions linked to her health nor were they aware of a pre-existent disability. They understood that they were charged with appointing the most suitable candidate for the Principal position and they all contended that they had achieved their objective in this regard by their involvement in short listing, Selection Criteria, Interview procedures and recommendation of the successful candidate based on the highest marks achieved at interview. They were not aware of the complainant’s formal dissatisfaction with the outcome until 2015.

5.3 Evidence of Fr A

Fr A had known the complainant since 2007. Her work in Home School liaison, Sacramental preparation and Music had been impressive. Fr A was the appointed Chairperson of the Interview Board. He was cognisant of the correct procedures for Interviews. He had been chair of the Board of Management at the instant school for 6 years. He had undertaken all courses available to him on interviews and he was aware that the complainant had a Disability but never mentioned that fact to any of the other 4 external assessors. He was clear that all internal applicants were treated equally to the 4 external applicants. He had not completed Equality training. He followed the doctrine of Pope Francis in his approach as a priest in terms of being “approachable”. He denied a friendship with the complainant and instead referred to having a professional relationship. He recalled having coffee with her on one occasion only at his house. He had sent flowers to her while she was out on sick leave from the Board of Management. He denied canvassing applicants for the position of Principal and instead told the Tribunal that he had approached the successful candidate in advance of the interview to rectify a power point issue he had. He did not bring any pre conceived ideas of the complainant’s capacity into the interview and he had not engaged in any prior conversation with the complainant. He had asked other teachers if they were applying for the position. He supported her with glowing references when she had sought other Principal positions. He disputed being “cold” towards her on her return to work in May, 2013.

He recalled asking two questions of the complainant at interview, at commencement and at the conclusion, which he estimated was 45-50 minutes long. Fr A contended that there were global questions and “Familiarity with current issues” was inherent throughout all of the five selection criteria. The interviews finished on time. All marks were arrived at independently without conferring and were added up at the end. He recalled that the complainant gave short responses to questions and left some unanswered. On reflection, he formed a view that her sense of entitlement prevented her from answering in a more expansive manner. He recalled that he himself had awarded the complainant the highest marks on his personal marking system. All seven candidates were asked the same questions. He had no issue with the complainant. At the conclusion of the interview on June 21 set, the five assessors met, marks were totalled, agreement reached and a recommendation was made to the Board of Management on the preferred candidate for the position. The Patron was informed

On June 25th at 12.30pm, Fr A met the three internal candidates individually in the Principals office. When he informed the complainant that she had been unsuccessful, she stated “Are you saying that I am not fit for the job?” and walked out without asking who had been successful? At 2.15pm, he called the staff together and made the announcement of the new Principal.

He recalled being approached by Ms and Ms B in early July at his home around 11 am. He hadn’t anticipated their questions and assumed the matter was in connection with a sacramental/pastoral class being taught by Ms A. He denied any reference to saying “It was a pity she was out” or mentioning that he could have fought for her if she had been marked higher. He believed that his conversation with them was misinterpreted.

He felt bullied by the intrusion into his home by the two teachers and was annoyed that they had the audacity to challenge him when they had no idea on any of the candidate’s performance at interview. He was aware that the actual decision of the interview board was supported by many teachers also. There were over 30 teachers at the school. He was certain that Health or discrimination were not a factor in the markings at interview and felt that he hadn’t fallen into their trap. He felt “hurt “that he had been criticised for a bad day’s work.

He denied snubbing them later at a Hotel and had actually waved at them in passing.

6 FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER:

6.1 I must now consider the complainant's claim that the respondent directly discriminated against her on disability grounds in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts 1998 and 2011, in contravention of 8 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

6.2 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or

on behalf of a complainant from which it may be presumed that

there has been discrimination in relation to her or her, it is for the

respondent to prove the contrary.”

6.3 In Melbury Developments Ltd v Valpeters [7] the Labour Court held that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

6.4 I am satisfied that the complainant had a disability as evidenced in her Med Mark reports proffered to the Tribunal dated 11 January, 2013 and 7th May, 2013. She had a seven-month absence from work 2012/2013, which was directly attributed to her condition. In her medical clearance to return to work, the Occupational Health Physician inserted the following advisory note to the Respondent:

“Future difficulties and flare up of her condition can unfortunately not be ruled out but this should not bar her return to work at the moment “

This constituted a qualified return to work and was a clear indication that the respondent should have been on adequate notice of the extent of the complainant’s condition. I cannot therefore accept the Respondent contention that the complainant should be estopped from pursuing her case under Equality Legislation on the grounds that she was fully fit on her return to work on May 13, 2013.Medmark is an Occupational Health Service sponsored by the Respondent and I accept this evidence. I further note that the Respondent was on notice of the complainant’s previous application for retirement on the grounds of ill health, which was subsequently withdrawn.

6.5 Section 8 prohibits discrimination on any of the nine grounds specified in the Act in relation to promotion. In O’Higgins v UCD[8] the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:

“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’

6.6 I have given consideration to the evidence as advanced by the complainant and her witnesses. I have found a number of anomalies in the procedures and decisions adopted by the respondent in relation to the competition [9]

I find that there was a marked inconsistency between how the interviews for Principal in two other nearby schools were conducted in 2011 and 2012 and the instant case. The complainant was satisfied with the transparency of the interview process on that occasion and on the feedback, she received. Both interviews were governed by the same set of rules contained in the National Document “Board of Management of National schools, Constitution of Boards and Rules of Procedure 2011”. I accept the evidence of the complainant in this regard.

6.7 I appreciate that it is not my role as an Equality officer to decide on the merits of the applicants in a selection process where there are designated decision makers save where the process is found to be unfair, irrational or tainted by discrimination.[10] The criteria decided for shortlisting stated that “All applicants called for interview must be

1 Fully Qualified Primary Teachers with five years’ experience.

2 Possess a Catholic Religious Education Diploma

From my review of the submitted application forms, I find that both the appointed candidate and the complainant recorded having a Certificate in religious education and not a Diploma. As these were the sole application forms received, I was unable to discern whether the requested Diploma was in the possession of the 5 other candidates. Perhaps the educational award was subsumed to Diploma in the intervening period.? I found the omission to remark on it to be unusual.

I also found it strange, that while the sole educational qualification to secure an interview for the position of principal was listed as being a Primary School Teacher, that one of the five deciding criteria was then listed as “Qualifications and performance at interview “I find this to be a very subjective criteria and the disparity in the markings between the two candidates as 91 and 66 to be stark and was not adequately explained in my opinion I am struck here by the complainant’s contention that her extended time spent deputising for the Principal in addition to her 7 years as Deputy Principal was not visibly weighted in the markings, while she contended that her absence directly in advance of the interviews prejudiced the interview board. I reviewed the successful candidate’s application form and note the disparity in his experience at managerial level and I began to find it difficult to discern just how the marks of the candidates had been arrived at in an objective manner.

6.8 I was very impressed at the visible dedication to Education expressed unequivocally by all four external assessors but I was troubled by the random approach adopted in the markings. There is no clear guidance in the Dept. of Education procedure document on the importance of a uniform marking guide system or the need for a nominated time keeper. It merely states that Equality Legislation should be complied with but is not specific outside each Assessor is responsible for completion of their own marks. The complainant was clear that she was not asked the questions as they were reported and that she was treated less favourably than the successful candidate in relation to inconsistent questions, lack of opportunity to recount her experience in teaching which was at a higher level than the successful candidate. In addition, she was not afforded the same length of time at interview. I was shown two lists of questions from the parties but neither party was in a position to demonstrate a definitive record of the analysis of the candidate’s performance. 2.6.6 of the Dept. of Education document determines that:

“The individual marks shall be added and the final mark for each candidate will be used to produce a ranking of candidates who are deemed suitable for appointment. The Chairperson shall furnish the final marks and the ranking to the Board of Management together with a written report, nominating the applicant whom it considers suitable for appointment “A copy is to be retained by the Board of Management.”

I did seek this document during my investigation but did not receive it. This led me to form the view that the process was lacking in transparency. This was a concern to me as my role is to investigate the complaint under Equality Legislation alone. [11]In a National School v a Worker, the Labour Court stated its objective was to ascertain whether the Respondent infringed the Complainants rights under Employment Equality.

Three out of the five assessors retained notes. Two of these notes were terse in the main and not determinative. The remaining note was objective .and clear. Given that one of the assessors did not have a questioning role, I find that the interview suffered from an overly subjective approach. Ms C was not given notes of the successful candidate’s interview process when she requested them on the initial EE2.

I did enquire whether an internal appeals process was open to the complainant and was informed by both parties that there was no appeals mechanism. I note the reference to an appeals procedure in UCD v A Worker [12], where the Court heard a complaint under the IR Act in relation to an application for an Associate Professor position, it seemed that there was an agreed internal appeals procedure referred to as University Committee on Academic appointments tenure and promotion (UCAATP). I find that the Respondent was on notice on two counts, from the complainant herself and from Ms A and B indirectly that she was dissatisfied with the outcome of the Interview and yet, no feedback, reassurance or guidance was offered to the complainant outside of the eventual complaint to the Equality Tribunal. The complainant had to wait almost two and a half years before she received a modicum of feedback from the Board of Management of the school where she had worked for over 30 years. I find this to be unfair and irrational.

6.9 I listened carefully to the evidence on the changed atmosphere experienced by the complainant on her return to work in May 2013 and the respondent’s rebuttal of same. Where previously, she understood that she was highly respected and the “go to” person in the eyes of the Chair of Board of Management, she now felt a sense of exclusion. I appreciate that it was open to the complainant to activate a grievance in this regard if she felt it was warranted. I also appreciate that the Respondent explained the change in the context and background of her alternating roles of Head Teacher in the absence of the then Principal and her subsequent return to her Deputy principal position. However, I needed to probe this issue further.

During the course of my investigation, I found that there was an understanding at both Board of Management level and Principal level of the Complainants health status, so much so that the Principal expressed an apprehension regarding the compatibility of the post of principal to the complainant’s health. I accept that the Complainant experienced a coolness on her return to work in May 2013 and that this caused her some disappointment given the centrality of her role to the school previously.

6.10 I must now address the witness evidence of Ms A and Ms B. I heard an extensive account of their collective experience when they visited Fr P to register their disappointment at their colleagues lack of success at interview. I found them to be clear, independent thinkers, who believed that they were acting in the best interest of the school and their colleague. The detail of the conversation was corroborated, albeit rejected by Fr A

I accept that the Respondent had grave difficulty with the written note of the meeting and I accept that there are frailties in the document when it was so heavily redacted and undated. However, I heard the corroborative evidence on a first in time basis and I will base my decision on that account as the written note was only produced when it was cross referenced in oral evidence and I asked for follow up. Therefore, on the balance of probabilities, I accept the direct evidence of Ms A and Ms B on the discourse between them and Fr A at his home at the beginning of July 2013.

6.11 Finally, I examined Section 2.5.5 of the Dept. of Education document in relation to a “material relationship” being grounds to absent presence from a Selection Board.

“The disclosure and the decision shall be recorded in the minutes of the Board. In this context Board members are required to make a disclosure not only in the case of family relationship but in respect of any relationship which could be regarded as prejudicial to ensuring absolute impartiality in the selection process”

It is clear to me that a “Material Relationship” could be inferred between the complainant and the Chairman of the Board given their close professional relationship through the school in addition to the complainant’s entire health record being at the disposal of the Board of Management via Fr A. I did put the question to Fr A whether he had considered excusing himself from the Interview Board but he rejected the concept. In addition, I asked why he managed the administration of the EE2 and EE3 given that he had relocated parishes and had been replaced by Fr B, given that the document was addressed to Chairman of the Board of management in November 2013? Fr A still saw the matter very much as his area of management. I conclude that the Interview process lacked transparency and caused the complainant to be treated less favourably than her cited comparator, the successful candidate.

6.12 For the reasons set out above, I conclude that the Complainant has established facts from which discrimination on grounds of disability can be inferred. Consequently, in accordance with S 85A of the Acts, the burden of proving, on the balance of probabilities, that the complainant was not the victim of discrimination rests with the Respondent.

6.13 In A National School V A worker [13] The Labour Court remarked on the absence of a “cogent explanation” given by the interview panel on why the successful candidate was preferred over the Complainant, who was better qualified in experience and academic attainment. The Complainant’s representative readily accepted that the successful candidate had attained a higher portfolio of post graduate qualifications but they contended that the complainant was disadvantaged by being precluded from demonstrating her extensive managerial experience at the interview. I have considered this position.

I have reflected on the respondent contention that the complainant’s ultra-sensitivity served as a sub plot in this case and that her expectations in relation to career progression at the school were self-motivated rather than being led by agents of the school and I am not swayed by these contentions. I am struck by the force of the opposition directed towards the complainant and find that it is in sharp contrast to the previously lauded professional achievements, in particular the Deis evaluation project. In accordance with the precedental case mentioned above, I find overlaps in the instant case. I concluded my investigation without receiving an acceptable objective reasoning on the reasons why the Board of Management appointed the successful candidate given the vacuum in documentary evidence from the interview process, in particular, I refer to the absence of the letter of recommendation to the Patron. I have also concluded on the balance of probability that the mind set of the Chairman of the Board was influenced by the complainants pre existant disability which impacted on his impartiality.

6.14 In these circumstances, I find that the Respondent has failed to rebut the inference of discrimination on disability grounds and the complainant is entitled to succeed in her complaint.

7: DECISION

7.1 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.

7.2 I have investigated the above complaints and make the following decisions in accordance with Section 79 of the Acts that: In accordance with Section 82 of the Act, I order the Respondent to:

7.3 (a) Pay the Complainant €18,750 in compensation for breaches of the Employment Equality Acts. The Complainant clearly suffered considerable upset, anxiety and alienation in relation to the manner in which the Respondent conducted the interview for the position of Principal at the Respondent school. The Complainant had a strong desire to lead the school and was deeply hurt. She commenced sick leave in December 2014 and at the last date of hearing, November 6, 2015 remained on sick leave. This award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax.

(b) I further order, as per Section 82(1)(e) of the Acts, that the Respondent conduct a review of its policies and procedures in relation to its recruitment policies to ensure that they are in compliance with the Employment Equality Acts with particular reference to the disability ground and an opportunity for an agreed internals appeals mechanism. In addition, all candidates should be offered a feedback session on their performance at interview.

__________________________

Patsy Doyle

Adjudication Officer/Equality Officer

9th March 2016

[1] Labour Court Appeal DEE 041

[2] Labour Court Appeal EDA 0612

[3] Labour Court Appeal DEE 003

[4] Labour Court Appeal EDA 0714

[5] DEC -E2006-014

[6] Labour Court Appeal EDA 1515

[7] EDA 0917

[8] EDA 0131, upheld at High Court [2013] IEHC 508.

[9] Daughters of Charity and Martha Mc Ginn : EDA 039

[10] DEC-E2014-078, LCR 21114

[11] EDA 1515

[12] LCR 21114

[13] EDA 1515

EMPLOYMENT EQUALITY ACTS

DECISION NO: DEC-E2016-043

Ms C

(Represented by the Irish National Teachers Organisation)

And

Board of Management of School A

(Represented by Ms Ita mac Gruairc B.L, instructed by Mr Diarmuid O Cathain, solicitors)

File No: EE/2013/583

Date of Issue: March 2016

^st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1^st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2 Summary of the Complainant’s Submission

On 11 January 2013, the complainant attended an Occupational Health appointment. She was deemed “not currently medically fit to work “and was to be reviewed in 3 months. Shortly after this in April 2013, the complainant was commenced on a new medication which managed her condition and from which she saw a marked improvement. She withdrew her application for retirement on the grounds of ill health. The complainant returned for Occupational Health review on 7^th May 2013 and was cleared for returned to work on May 15^th 2013. An extract from the medical report submitted states:

Familiarity with current educational issues.
Knowledge of Deis.
Vision and Leadership.
Catholic Ethos and Pastoral care.
Performance at Interview and qualifications.

It was the complainant’s evidence that she was not questioned on 3/5 topics and was shocked on receipt of her markings that she had been marked down on these topics. These topics were

DEIS
Catholic Ethos
Knowledge of current education.

She was also taken aback at the continued distance from the Chairman of the Interview Board, Fr A, who was also the Chairman of the Board of Management.

1 1hr 10 mins (Eventual successful candidate)

2 50 mins (Another internal candidate)

3 The Complainant 45 mins.

^th, the Complainant was informed by the Chairperson of the Board that she had been unsuccessful at interview. The complainant was particularly distressed and became further distressed at the manner in which the announcement of the successful candidate was subsequently communicated to the staff in the presence of outside delivery staff at a staff meeting half an hour later. The successful candidate had less experience than her. The complainant described being “heartbroken” but felt unsupported at the school with the exception of one member of the Board. She sought the notes and marks covering the interview.

Copy of marking sheet for successful candidate
Notes taken during the interview of the successful candidate
Record of experience of successful candidate
A full list of questions at interview
Board of Management minutes in relation to the appointments process
All other relevant material.

^th January 2014

Discrimination was denied
The complainant’s non appointment was due solely to not being the most suitable candidate.

The first three requests were declined on confidentiality grounds

The remainder were declined by citing that the matter was not properly before the Equality Tribunal and the allegation lacked specificity.

1 Tesco Irl v Gerry Kirwan [1]

2 A Government Department v A Worker [2]

3 Rotunda Hospital/Mater Hospital v Dr Noreen Gleeson [3]

4 A Technology Co.v A Worker [4]

5 Meehan v Leitrim Co Council [5]

6 A National School v A Worker [6]

3 Witnesses For The Complainant

Good Work was not enough
“It was Pity she was out “
“Sickness was not a factor”
There were things that he could not divulge
He agreed that the Community had expressed a wish to have Ms C as Principal

Ms B recorded that she had:

Challenged Fr A on “Why did you not fight for her?” (Ms C)
Fr A stated that “I can only fight if candidate is near the top “
Ms B advanced the case that Ms Cs performance at school was what the school needed to turn itself around in the crisis it was in.
Fr A stated that “It was a pity she was out “but that Sickness was not a factor. He states that he was prohibited from further discussion due to confidentiality. The Interview Board was elected by the Bishop.

4 SUBMISSION ON BEHALF OF THE RESPONDENT

. It was the Respondent case that the competition was conducted fairly and in accordance with regulations made by the Department of Education and Skills. The Respondent’s position is that the selection of the successful candidate was based entirely on merit. The Respondent had furnished the Complainant with form EE3 dated 24^th January 2014, where discrimination was rebutted on the grounds that the complaint to the Equality Tribunal was misconceived.

Sr A, Sr B, Mr A, Mr B. All of whom were highly experienced Interviewers and Educationalists.

A preliminary meeting of the interview Board was held in May to

1 Set down selection criteria

2 Prepare a marking scheme

3 Short List Applicants.

1 Familiarity with current education issues.

2 Understanding of education disadvantage-DEIS

3 Vision and Leadership

4 Catholic Ethos and Pastoral care

5 Performance at Interview and qualifications.

^st 2013.It was the Respondents case that all candidates were interviewed identically and in accordance with the stated objectives of the Procedures Document. Care was given not to differentiate between external and internal candidates and all candidates were interviewed for the same duration of time. The candidate who obtained the highest marks at the interview was recommended by the interview panel for appointment in accordance with due procedure.

^nd July, 2013, in response to a request from the Complainant, the Respondent furnished details of the records of the marks of the five Assessors from the interview which covered her individual presentation at interview. The Complainant followed this up with a request for the original marking sheets and all notes taken at interview under the Data Protection Act. On July 12^th, 2013 the Respondent furnished notes from interview which were compiled by two of the Assessors and the Chairman as two of the remaining Assessors had not taken notes.

It should not be given the dignity of a hearing
The location and tenure of the questioning was disgraceful
No credence would be applied in a court of law due to the heavily redacted version submitted (reference to third parties was redacted)
The respondent sought the expulsion of the document from the investigation.

5 WITNESSES FOR THE RESPONDENT

Mr A

Mr B

Sr A

Sr B

He denied snubbing them later at a Hotel and had actually waved at them in passing.

6 FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER:

I must now consider the complainant's claim that the respondent directly discriminated against her on disability grounds in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts 1998 and 2011, in contravention of 8 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when she has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or

on behalf of a complainant from which it may be presumed that

there has been discrimination in relation to her or her, it is for the

respondent to prove the contrary.”

3 In Melbury Developments Ltd v Valpeters[7] the Labour Court held that:

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

^th May, 2013. She had a seven-month absence from work 2012/2013, which was directly attributed to her condition. In her medical clearance to return to work, the Occupational Health Physician inserted the following advisory note to the Respondent:

“Future difficulties and flare up of her condition can unfortunately not be ruled out but this should not bar her return to work at the moment “

Section 8 prohibits discrimination on any of the nine grounds specified in the Act in relation to promotion. In O’Higgins v UCD[8] the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:

“1. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

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.
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
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.
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
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.
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.
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’
[9]

[10] The criteria decided for shortlisting stated that “All applicants called for interview must be

1 Fully Qualified Primary Teachers with five years’ experience.

2 Possess a Catholic Religious Education Diploma

I did seek this document during my investigation but did not receive it. This led me to form the view that the process was lacking in transparency. This was a concern to me as my role is to investigate the complaint under Equality Legislation alone. [11]In a National School v a Worker, the Labour Court stated its objective was to ascertain whether the Respondent infringed the Complainants rights under Employment Equality.

I did enquire whether an internal appeals process was open to the complainant and was informed by both parties that there was no appeals mechanism. I note the reference to an appeals procedure in UCD v A Worker [12], where the Court heard a complaint under the IR Act in relation to an application for an Associate Professor position, it seemed that there was an agreed internal appeals procedure referred to as University Committee on Academic appointments tenure and promotion (UCAATP). I find that the Respondent was on notice on two counts, from the complainant herself and from Ms A and B indirectly that she was dissatisfied with the outcome of the Interview and yet, no feedback, reassurance or guidance was offered to the complainant outside of the eventual complaint to the Equality Tribunal. The complainant had to wait almost two and a half years before she received a modicum of feedback from the Board of Management of the school where she had worked for over 30 years. I find this to be unfair and irrational.

A National School V A worker[13] The Labour Court remarked on the absence of a “cogent explanation” given by the interview panel on why the successful candidate was preferred over the Complainant, who was better qualified in experience and academic attainment. The Complainant’s representative readily accepted that the successful candidate had attained a higher portfolio of post graduate qualifications but they contended that the complainant was disadvantaged by being precluded from demonstrating her extensive managerial experience at the interview. I have considered this position.

7: DECISION

In accordance with Section 82 of the Act, I order the Respondent to:
€18,750 in compensation for breaches of the Employment Equality Acts. The Complainant clearly suffered considerable upset, anxiety and alienation in relation to the manner in which the Respondent conducted the interview for the position of Principal at the Respondent school. The Complainant had a strong desire to lead the school and was deeply hurt. She commenced sick leave in December 2014 and at the last date of hearing, November 6, 2015 remained on sick leave. This award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”. As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax.

__________________________

Patsy Doyle

Adjudication Officer/Equality Officer

March 2016

[1] Labour Court Appeal DEE 041

[2] Labour Court Appeal EDA 0612

[3] Labour Court Appeal DEE 003

[4] Labour Court Appeal EDA 0714

[5] DEC -E2006-014

[6] Labour Court Appeal EDA 1515

[7] EDA 0917

[8] EDA 0131, upheld at High Court [2013] IEHC 508.

[9] Daughters of Charity and Martha Mc Ginn : EDA 039

[10] DEC-E2014-078, LCR 21114

[11] EDA 1515

[12] LCR 21114

[13] EDA 1515