Complainant

Respondent

Anonymised Parties

A Primary School Teacher

A Primary School

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00005717-001

08/07/2016

Very extensive evidence based on comprehensive research and supporting documentation was presented by the Complainant in this case.

The Complainant had commenced employment with the Respondent School, in a substitute capacity in 2014. In June 2015 she was successful in a competition for a Temporary Fixed Term position which lasted until 31^st August 2016.

In May 2016 the School had a recruitment competition for three Temporary Mainstream teaching positions. The Complainant applied but was unsuccessful.

In summary the main points advanced in support of her case for “Age Discrimination” and “Discrimination in getting a job” were

1. She was asked a most discriminatory question at the interview.
2. The successful candidates were all younger than the Complainant and she was replaced by a younger external candidate.
3. The Complainant had much more teaching experience that any of the successful candidates
4. The selection process was non-compliant with the Minister for Education and Sciences ’s Procedures regarding
5. The Advertisement
6. The Shortlisting
7. Explanation of Marks awarded at Interview.

In follow up communications with the Respondent displayed a lack of openness and clarity. Satisfactory explanations were not provided to her legitimate questions regarding the entire selection process.

The Respondent also submitted extensive evidence in support of their case.

The Recruitment Competition was run strictly in accordance with paragraph 4.2 – (Recruitment Procedures for Teachers in Recognised Primary Schools) - of Appendix D of the Governance Manuals for Primary Schools.

As required by the Manuals an Interview Board was set up comprising the Principal, the Chairperson of the Board of Management and an independent Outsider.

Section criteria were agreed and the shortlists of applicants for interview was drawn up .Some 180 applications were received.

An agreed list of interview questions, to be asked equally of all candidates, was agreed in advance.

Marking Sheets were prepared and a marking scheme established.

Interviews were held on the 17^th and 20^th June 2016.

The Respondent maintained strongly that no discriminatory questions were asked and that all proper procedures had been followed.

The Complainant was unsuccessful in the interview process and scored low scores on the agreed questions.

It was acknowledged that there had been in effect seven temporary positions available but only three had been advertised for. However it was stated in the Advert that a “panel” would be created.

In post Interview procedures the Respondent had provided the Complainant with all requested information. The process was transparent and all fair procedures and marking schemes were adhered to.

In relation the Discrimination allegation regarding the Interview Question which the Complainant maintained displayed Age Discrimination the Respondent maintained that the question as put could not be construed as discriminatory by any reasonable interpretation.

The fact that the Complainant is older than the successful candidates is not itself grounds to base a discrimination claim.

In legal submissions the Respondent referenced Section 85A of the Employment Equality Acts as regards the Burden of Proof required – the need to establish a prima facie case by the Complainant.

The Respondent strongly maintained that no such proofs had been provided and the claim should be dismissed accordingly.

3:1   The Law and Relevant Authorities

The legal principles applicable in a case such as this are well established and can be briefly summarised. EDA 131 of January 2013 is instructive in this context. In this case the Labour Court set out the basic principles that have to apply. Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. In A Worker v A Hotel[2010] 21 E.L.R. 72 the Labour Court held as follows in relation to the application of this provision: -

The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That 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 from 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 Adjudicator or the Labour 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. In Determination EDA042, Kathleen Moore Walsh v Waterford Institute of Technology the Labour 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 merit 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 Partnership the Labour Court pointed out that the qualifications or criteria which are to be expected of candidates is 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 is clearly better qualified against the chosen criteria that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library BoardIRLR 193. Here, Lowery LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination. The application of these general principles was considered by the Labour Court in An Employee v A Government Department [2006] 17 E.L.R. 225. This was a case in which a recovering alcoholic claimed to have suffered discrimination on grounds of disability in the filling of promotional posts. The posts in issue were filled on the basis of seniority and suitability through a system of promotion operated by the Civil Service in which candidates were considered by a group of senior managers in what was known as a consistory. The Complainant in that case was the most senior applicant but he was deemed to be unsuitable for unstated reasons. In considering the circumstances in which the probative burden shifts, the Court held as follows: -

There is no exhaustive list of factors which can give rise to an inference of discrimination. However in cases involving promotion, 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, in themselves, give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate's chances of success were as much dependant on their principal officer's power of advocacy and his or her standing with their peers, as on the candidate’s ability to undertake the duties of the higher post.

On the facts of that case the Court held that the Respondent carried the burden of proving the absence of discrimination. Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the prohibited grounds, be it Age or Gender, of the Complainant and the impugned act or omission alleged to constitute discrimination. Thus, in Wong v Igen Ltdand others[2005] EWCA Civ 142, (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that 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. In all discrimination cases the Labour Court emphasised that an Adjudicator or the Court itself should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. In Nagarajan v London Regional Transport[2001] UKHL 48, Lord Nicholls of Birkenhead said the following: -

I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

While that case involved a claim of racial discrimination the general principle enunciated by Lord Nicholls is equally applicable in cases involving other forms of discrimination. A similar approach was taken by this Court in Nevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -

Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, 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.

In Nevins, Murphy, Flood the Labour Court also considered the quality of evidence that should be expected from a Respondent who bears the burden of proof. In adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite[2003] I.R.L.R. 322, the Court held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the Respondent, the Labour Court should normally expect cogent evidence to discharge that burden.

3:2   Relevant principles established by the Labour Court

From these decisions and authorities the following principles can be extracted: -

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 or Adjudicator in first instance 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 or Adjudication Officer in first instance, 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 considered the Legal position it is now appropriate to look at the facts of the case.

3:3   The Pertinent Facts from the Evidence.

3:3(1)   Question One Is there a Prima Facie case from the facts. ?

Looking at key issues raised

A)        The Process Followed

In the case in hand the evidence presented pointed to the conclusion that paragraph 4.2 – (Recruitment Procedures for Techers in Recognised Primary Schools) - of Appendix D of the Governance Manuals for Primary Schools had been closely followed.

A properly constituted Selection Board had been established; agreed questions and selection criteria had been established. Proper Records were kept of the Process.

B)         The Information Given in Advance to the Interview candidates.

Some minor criticism might attach to the Respondents in not giving the Candidates a copy of the Selection criteria in advance of the Interviews but I felt that this was not a very material fact.

C)       The Advertisement of three vacancies

The Advertisement of three vacancies where in fact there was a potential seven vacancies was also not greatly to the Respondents credit .However the clear statement on the Advert that “A panel of suitable applicants may be set up to fill vacancies which may occur within a four months period”   mitigates this fact. This policy of adverting a lesser number of vacancies (covered by references to a panel) than potentially exists is common place in the Sector. However as long as no discriminatory practices attach to the eventual appointments it is an administrative practice of convenience to the Employers.

I did not find it stood as the basis for the Discrimination Claim of the Complainant in this case.

D)        The Shortlisting

The Shortlisting by the Respondent from approximately 180 applicants to an interview panel of some 12 candidates was more problematic. In mitigation for the Respondent the argument was made that the Shortlisting was done by experienced professionals and to the guidelines in Appendix D of the Management Guidelines. The assumption by the Complainant that a different panel of candidates might have produced a result more to her favour has to remain as a speculative presumption. All 180 candidates could not be interviewed and the Selection/Shortlisting Board, comprising as it did of two experienced Primary School Principals and the experienced Chairperson of the Board of Management operating to Department Guidelines was, in my view the best pragmatic solution to the preparation of the Interview Shortlist.

I did not see how the Complainant's case could be substantially advanced by reexamining the applications of the 180 to see if one or indeed a number of alternative possible combinations might give a different outcome or substantially advance a claim of discrimination.

E)       The Interview /Questions Asked and Answered.

This was the key area.     Respondent Witness evidence was given by the Chairperson of the Board of Management and the School Principal. The Complainant gave her oral evidence. All gave very cogent and heart felt evidence.

A complicating factor was that the Independent member of the Board was seriously ill and unable to attend the oral hearing. The hearing was, in fact, adjourned for a matter of months to allow for his recovery but unfortunately this did not transpire.   An offer was made for the individual to make a written submission but I felt that this would be inappropriate given his reported medical situation. In would also not allow for any opportunity for the Complainant to cross question the witness.

Accordingly I proceeded on the basis of the three witnesses present. Interview records made by each side were presented. It was clear to me that the Complainant had not performed well at the Interview. I noted that the Interview was scheduled for 30 minutes but the Complainant’s interview lasted 15 minutes. The Complainant was reported by the Principal as giving very brief answers and not really engaging with the Board by using good examples of work done or practical issues that she would have been familiar with. The Respondent Principal also stated in oral evidence that she was wishing during the Interview that the Complainant would be “more expansive and less monosyllabic. – do herself more justice”. The Complainant had asked to be given an opportunity to repeat the Irish Language question at the end of the interview. This was allowed. At the conclusion of the interview that Respondent maintained that the Complainant had stated to the Principal as she was leaving the Interview room that she, the Complainant, “had made a mess of that”.

On balance and having heard the oral testimony I came to the view that on the balance of Probabilities the version of events presented by the School Principal was more convincing. The Conclusion had to be reached that the Complainant had not done herself justice during the overall interview process.

Regarding the Disputed Question “Why all those years ago, had she decided to teach”? This was derivative of the agreed question “why did you decide to teach”? The rephrasing could be seen in the context of the First Question regarding the Applicants CV.

The Parties disagreed sharply as to the member of the Interview Board who had asked the question. The absence of the Independent Member evidence made reliance of the Oral evidence of the parties present at the hearing more crucial. On balance I found the evidence of the School Principal more convincing. She maintained that the disputed question was not asked with a discriminatory purpose and was not seen as such. The Interview Board included one very experienced School Principal – the Independent member and the Respondent Principal. The School Principal absolutely refuted any discriminatory intent and I found this a credible statement.

From the evidence the Complainant had interviewed very badly and had scored very poorly on the selection criteria. According when her scores were totalled she was well behind the successful candidates. I could not see how, unless there was a manifest discriminatory predisposition against her which I did not see, the low scoring of the Candidate on the other non-disputed questions could be linked to an allegation of age discrimination regarding the Disputed question.

F:   The explanations of the marks awarded /scores of the Complainant

The Respondent had provided full details of the marks awarded to all candidates. As stated above Labour Court precedents are that it is not for an Adjudicator to re run the Interviews once he/she is satisfied that a fair and transparent process following, in this case, agreed guidelines has been followed. The Interview Board had two professionals in the Education field and an experienced Chairperson of the Board of Management. I was satisfied that it was not a requirement, in a rebuttal of a discrimination claim, for the Respondent to justify and explain the scores of all the candidates vis a via the Complainant.

G:     Age and Qualifications of the Complainant v/v other Applicants.

The fact that the Complainant was older and had more experience on some aspects of teaching was not in itself the basis for a discrimination claim. Labour Court precedents are strong on this point. Once a fair and non-discriminatory process has been followed it is not for an Adjudicator or the Labour Court to re-evaluate the decisions of the Interview Board.

Determination EDA042, Kathleen Moore Walsh v Waterford Institute of Technology referred to above is worth noting in his context.

H:   Transparency

The process was transparent. All required details were provided to the Complainant following the interviews or in the course of the Adjudication hearing.

3:4     The Conclusion

Accordingly, having heard all the evidence and read all the written materials I came to the view that there was not sufficient evidence presented to reach the level of prima facie proof required in a discrimination case under the Employment Equality Acts.

It is worth repeating the principals set out in the Mitchell v Southern Health Board [2001] E.L.R. 201. Case. The primary facts have to be proved to a satisfactory degree for claim of Discrimination to succeed.

I could not come to the conclusion that a prima facie case had been established on either the grounds of Age Discrimination or Discrimination in getting a job as alleged.

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 provision under Section 82 of the Act.

For the reasons set out above in Section 3 of this Adjudication I do not uphold complaint CA-00005717-001. The claim is dismissed.