ADJUDICATION OFFICER DECISIO

Adjudication Decision Reference: ADJ-00002596

Complaint for Resolution:

Date of Adjudication Hearing: 18/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant has been employed as a teacher by the respondent since December 1998 and on a full-time, permanent contract since 2002.

It is relevant to the complaint to say that the complainant is a parent of two young children aged 11 and 12.

On the 1st September 2015, a notice was put up in the school staffroom advertising two vacancies for Assistant Principal positions undertaking the duties of Year Head for 2nd Year and 5th Year students respectively. The complainant applied for both positions on the 10th September 2015 and was invited to interview for them.

The complainant attended for interview for the first position on the 5th October 2015. The interview panel comprised, the Chairperson of the Board of Management (BoM), (Witness A), an independent Chair of the interview Board, (Witness B) and the School Principal (Witness C).

At the start of the interview the Chairperson of the BoM asked a question in relation to the three roles of a Year Head, namely pastoral, disciplinary and administrative. The complainant started her response by mentioning the Code of Behaviour in the school but says she was immediately interrupted by the BoM Chair and told that she had completely bypassed the pastoral role.

The complainant found this very off-putting. At a later point in the interview she was asked by the BoM Chair what contributions she had made to the school and she replied that she had introduced Applied Mathematics to the curriculum.

The interviewer then made what she regarded as a sarcastic remark saying, ‘How's that going for you now?’

The complainant assumes this remark was a reference to the subsequent dropping of Applied Mathematics from the school curriculum by the school principal due to timetabling pressures and this too made the complainant feel very uncomfortable.

Towards the end of the interview the complainant was asked what she could bring to the job. She commenced her answer by listing her personal and professional qualities, but was interrupted by the Chair of the BoM who expressed surprise when she said that she would give time to the students.

She said, "Really! You can give time with young children at home?" She then sought support from the Principal saying, "You know I always give students time!".

There was no response. The complainant very much felt that the interview was effectively over at that point.

What the complainant perceived as the hostile attitude displayed to her during this interview caused great distress to her and undermined her preparations for the second interview which took place on the 8th October 2015 before the same interview panel members. She felt that the attitude demonstrated towards her in the first interview, and in particular the question she asked about her family circumstances, demonstrated that she would not be appointed to either of the positions she had applied for irrespective of her qualifications and experience or how she performed at the interviews.

On Friday 23^rd October 2015 the Principal came to the complainant’s class and called her out of the room to give her the results of the interviews.

This confirmed that she had been unsuccessful in her applications for both of the Assistant Principal positions so she submitted formal requests for copies of the interviewers' notes for both interviews on Wednesday 4th November 2015 and received these on Monday 9th November.

As the date for a formal appeal against the decisions of the interviewing panel was Tuesday 10th November this did not afford her sufficient time to compose and submit an appeal against the decisions of the interviewing panel.

.With regard to the notes taken by Witness B under the heading ‘Organisation & Management’, he wrote, ‘Management [underlined], [unclear] enthusiasm -: no problem with extra hours. No problem with time for children [underlined].’

With regard to the notes taken by the school principal, Witness C, under the heading ‘Organisation & Management’, she wrote; "...offers admin/ enthusiasm/ time - extra time – no problem.”

The complainant submits that the note taken by Witness B directly corroborates her assertion that she was asked a question during the interview regarding her childcare responsibilities, and that the note taken by the Principal offers partial corroboration of same.

These were contemporaneous interview notes made by Witness B and Witness C, both members of the interviewing panel.

The complainant submits that her corroborated evidence meets the prima facie test and that her complaint of discrimination on the grounds of family status lies within the

“… range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence.”

The complainant says that her corroborated evidence is of sufficient significance as to discharge the requirements of Section 85(A) that she establish a prima facie case of discrimination on the grounds of family status and that the selection process that she underwent for the advertised positions was clearly tainted by unlawful discrimination.

Respondent’s Submission and Presentation:

The respondent says that the key statement upon which the entire complaint is grounded was not made at the interview. No case arises under the Employment Equality Acts in respect of other allegations about how she was treated at the interview, even though these are denied.

The alleged corroboration of the allegation found in the notes made by Witnesses B and C do not in fact do so and the reference to ‘children’ was not to the complainants but to the pupils in the school.

Many of the candidates had similar family status to that of the complainant including successful candidates. The complainant’s submission that the experience of the first interview adversely affected her performance in the second interview is challenged by the fact that she performed very much better in that second interview

All three witnesses gave direct evidence to this effect.

Witness A is a retired school principal, Chair of the Board of Management and has been a member of very many interview Boards and was very familiar with the legal framework around interviews and interview questions.

In advance of this meeting the members of the Board had met and agreed their approach to the interviews to ensure consistency in questioning and marking.

Witness A said she only interrupted the complainant when she felt that too much time had been consumed by her answer and other issues had to be addressed in the limited time available. This was not early in the interview as asserted by the complainant (a fact corroborated by the other witnesses.) Likewise she denies that she adopted a sarcastic tone towards the complainant (also corroborated by Witness B who described the tone as ‘neutral’, and Witness C who described it as ‘professional’.)

Witness A denies ever having made a reference to the complainant’s children, whose ages she was not even aware of.

Witness B, the independent Chair of the interview Board is also a retired principal and veteran of many interview boards. He said that had an inappropriate question been asked, such as the one complained of, he would have terminated the interview.

He also stated in evidence that the reference in his notes to ‘children’ was to the pupils in the school. He accepted that there are differing views on how to refer to school pupils he did not think it out of place in the context of quite young pupils to refer to them as children. His note was a reference to the successful candidate having to work outside normal working hours, and in the complainant’s case her willingness to do so.

Witness C has been Principal of the respondent school for six years. The majority of the applicants at interview had the same family status as the complainant. Witness C also stated that the reference to ‘children’ related to a discussion about the additional responsibilities of being a ‘Year Head’ and the extra time required for these duties.

She did not respond to the complainant’s seeking affirmation of the extra hours that she worked at interview because it would not have been appropriate in the context of the interview to affirm any candidate’s assertions and she would not engage with any candidate in such a way.

Findings and Conclusions

The complainant says she has been discriminated against on the family status ground.

Her representative in his summing up at the hearing asked why a person with a high reputation and a good professional record might make such an accusation if it were not true.

Before addressing this issue it is worth noting that the complainant’s professionalism and dedication were never in dispute and were confirmed at the hearing. She is clearly very highly thought of by her employer and her colleagues.

In fact, in respect of the alleged statement and the issue which has given rise to the complaint she has never had a difficulty in making herself available beyond the strict requirements of her contracted hours.

However, as the respondent’s representative was equally quick to point out, it does not need to address the complaint on that basis.

It falls to the complainant to establish a prima facie case. An obvious answer to the question might be that she was mistaken about the proceedings at the interview and misunderstood or misheard some of what was being said. Witness A’s evidence that she went on at unnecessary length on her first answer may indicate a degree of nervousness, perhaps.

Again, however it is not necessary to speculate on this. The complainant’s case is built on the alleged statement by Witness A and the notes of Witness B and C. All three witnesses deny that the statement was made. It also seems highly improbable that interviewers with such experience and familiarity with the law as it applies in such situations would make such an uncharacteristic error of judgement. Witness B, the Interview Board Chairman, said he would have stopped the interview if that had happened.

Similarly, given the nature of the employment, and also as confirmed in evidence, the profile of the majority of the applicants was not dissimilar to the complainant.

The second strand of the complaint, that relating to the interview notes is at best flimsy and ambiguous but at worst lacking in any probative value. In any event, one would have to discount the oral evidence of all three witnesses in order to bring this further evidence into play at all.

The complainant made an extensive legal submission on the burden of proof.

The test of whether a complaint meets the provisions of Section 85A (1) is discussed in Dr Eleanor O’Higgins v UCD Labour Court Determination EDA131 (January 11, 2013):

“The test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed. The type or range of facts which may be relied upon by a complainant can vary significantly form case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination.

The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts.

It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court in Kieran McCarthy v Cork City Council Labour Court Determination EDA082 (December 16, 2008)) Particular considerations apply in cases in which discrimination is alleged in the filling of jobs, including promotions.

On the basis of this test, and the relevant evidence adduced at the hearing I find that the complainant has failed to establish facts from which an inference of discrimination might be drawn, and therefore to make out a prima facie case.

Therefore her complaint fails.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons set out above I do not uphold complaint CA-00003614-0001 and I dismiss the complaint.

Dated: 15^th November 2016