FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : GAELSCOIL CHILL DARA - AND - BERNADETTE MOORE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011.A Labour Court hearing took place on 18th October, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Bernadette Moore (“the Complainant”) against the Decision of an Adjudication/Equality Officer in a claim alleging discrimination on the ground of age by Gaelscoil Chill Dara (“the Respondent”). She alleges discriminatory treatment by the Respondent in relation to access to employment contrary to Section 6(2)(f) of the Employment Equality Acts 1998 and 2011 (the Acts) and in contravention of Section 8 of those Acts in relation to her non-selection for employment.
The Adjudication/Equality Officer found that the Complainant had failed to establish aprima faciecase of discrimination and dismissed the complaint. The Complainant appealed to this Court.
The Complainant had referred her complaint to the Equality Tribunal, as it then was, on 27thNovember 2013. An Adjudication Officer in a separate decision not under appeal granted an extension of time to twelve months for the purpose of referring the complaint pursuant to Section 77 of the Acts.
Background
At the time this claim was initiated the Complainant was age 58. Her nominated comparator was younger (no details available). In November 2012 the Complainant applied for a position as Special Needs Assistant (SNA) with the Respondent, a primary level Gaelscoil. The job advertisement stated that fluency in Irish was essential and the required qualification was a Junior Certificate.
The Complainant had had a career in banking, which she left to rear her children and she later went to college where she obtained the necessary qualifications to teach languages including Irish at Secondary School Level. She has fluency in Irish and is a registered/vetted Secondary School Teacher. Over the years she had given grinds to local children, at primary and second level, many with special needs.
The Complainant applied for the vacant post but was unsuccessful. She claims that she was not appointed to the post because of her age.
Summary of the Complainant’s Case
The gist of the Complainant’s case is that she believed she was perceived as being too old for the position advertised and accordingly had been discriminated against on the ground of her age. This she contended was because some of the other candidates did not have fluency in Irish, were less qualified and less experienced than her. While she did not know who the successful candidate was, and did not know that person’s age, nor the ages of any other candidates, she said that she had her suspicions that they were all younger. She contended that as the job of SNA was a relatively new role in most schools, she doubted if there were many candidates with wide experience in the role.
The Complainant contended that proper procedures were not followed as she discovered that not all candidates had fluency in Irish and were not interviewed in Irish, unlike her. She said that at the interview on 3rdDecember 2012 she was asked more questions than were on the pre-set list; the role had been pitched at an unrealistically difficult level and she surmised that the questions would have been difficult for a person to answer in English let alone Irish.
She contended that when the interview panel noticed that she was more mature, they had no interest in her as a candidate, and that this was borne out by the marks she was awarded which she maintained did not reflect her qualifications and experience.
The Complainant said that she had not sought feedback from the Respondent as she had no confidence in the process and was of the opinion that favouritism was shown in the selection process. She said that she had been reliably informed that the successful candidate, whom she referred to as female, was personally known to the Respondent. In her submission to the Court the Complainant said“Obviously, the objective in this instance was all about picking the friend/relative rather than the most experienced or most qualified or the person who performed best at interview”.
Summary of the Respondent’s Position
Mr Séan de Paor, Principal of the Gaelscoil, on behalf of the Respondent denied the Complainant’s allegation that she had been unfairly treated at interview or that it had discriminated against her on the age ground. He refuted any suggestion that it had ever engaged in favouritism when selecting members of staff at any time. He said that the selection process was properly complied with by the Board of Management, it was conducted in full accordance with the Department of Education and Skills rules and was subject to ratification by the Patron.
The Gaelscoil has 437 pupils and a teaching staff of 21. In September 2012, a boy with behavioural difficulties commenced in the Gaelscoil. The Special Education Needs Organiser of the Department sanctioned the appointment of an SNA position to take immediate effect. The position was advertised on 9thNovember 2012. This advertisement was bilingual and stated that fluency in Irish was essential. Ten days later it was decided to re-advertise the post and to relax the requirement for fluency in Irish. This decision was taken as the requirements for this particular position were markedly different to the norm. Furthermore, as there was an immediate need to fill the position, the Board of Management was anxious to attract as many applicants as possible for the SNA position. The interview board comprised experienced interviewers and included an external assessor. Candidates were assessed and marked on the following criteria:-
- i.Suitability of qualifications;
ii.Professional ability;
iii.Teamwork and flexibility;
iv.Experience; and
v.Presentation at interview.
While the selection board considered that fluency in Irish would be desirable in the context of the Gaelscoil’s ethos, it had to balance it against the need to select a suitable person to help with the pupil’s atypical care needs.
There were five candidates interviewed for the position of SNA in December 2012. Mr de Paor said that some interviews were held both in Irish and English as it was obvious that some candidates were having difficulty understanding questions in Irish. Three of the interviews were held in Irish, including the Complainant’s and the successful candidate’s. The Complainant was ranked third, having attained 207 marks out of total of 300 marks, whereas the successful candidate who had previous SNA experience and also been interviewed in Irish scored 227 marks.
Mr de Paor said that there was no facility in the standard application form used for candidates to enter their ages or dates of birth. No mention of age was made any time during the selection process as it was of no significance. He said that none of the candidates was known to the selection board or to the Board of Management.
He said that the questions asked at each interview all related to the SNA position and, while a suggested list of 36 questions was given to the selection board, it was not a restrictive list and the questions were intended to ascertain how the interviewee might respond to the behavioural care needs of the pupil in question.
Conclusions of the Court
The Court has consistently held that an essential proof in any claim under the Acts is that the Complainant was treated less favourably than another person of a different characteristic (in this case age) is, was or would be treated.
Section 85A of the Acts provides, in effect, that a Complainant must prove facts from which discrimination can be inferred before the onus of proving the absence of discrimination shifts to the Respondent. It is well settled that the practical application of this principle requires the Complainant to first prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. The Complainant must then satisfy the Court that the facts so proved are of sufficient significance to raise an inference of discrimination. If the Complainant fails to prove the primary facts relied upon or to satisfy the Court that they are sufficiently significant to establish aprima faciecase of discrimination his or her case cannot succeed.
Where aprima faciecase is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete separation between the age of the complainant and the impugned act or omission alleged to constitute discrimination.
Particular considerations apply in cases in which discrimination is alleged in the filling of jobs. In Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technologythis Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision-makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.
In Determination EDA077-O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate isclearly better qualified against the chosen criteria that an inference of discrimination could arise.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that she was so treated because of her age. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that the successful candidate, her comparator for the purposes of the Acts, was treated more favourably than her. The Complainant did not have SNA qualifications or experience whereas the successful candidate had. Both were interviewed in Irish, the Complainant having indicated that she had fluency in Irish. The Complainant did not know who the comparator was, did not know his age or even his gender and had simply heard rumours about that person, which turned out to be inaccurate as the successful candidate was in fact not a woman but a man. Accordingly, her assertion that there was some form of favouritism is somewhat unrealistic when the information she relied upon was so inaccurate.
The Complainant was critical of the interview, saying that“people [sic] only invited to make up numbers and give the impression that proper/fair procedures were in place”. No facts nor evidence were presented to substantiate this assertion nor to indicate that age was a factor in the selection process. In her submission to the Court she blamed her difficulties in gaining employment as she perceived herself to be too old. It would clearly be impermissible for the Court to reach any conclusions of fact based upon mere supposition or speculation.
The Court is satisfied from the submissions made that there was no evidence of unfairness in the selection process nor manifest irrationality in the result. The evidence indicates that the selection criteria were consistently applied between the candidates. The Complainant may have been more qualified in teaching than the other candidates (the Court makes no finding in this regard), however, the role of SNA did not require teaching skills and/or qualifications but rather it required different skills which are more associated with dealing with the pupil’s care needs.
There is no reliable basis upon which the Court could assume without evidence that the Complainant was discriminated against on the ground of her age.
In these circumstances the Complainant’s complaint cannot succeed.
Determination
The within appeal is disallowed and the Decision of theAdjudication Officer is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd November 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.