EDA1726

These are cross-appeals of an Adjudication Officer's Decision No. DEC-E2016-056 in which a Complainant, a Secondary School Teacher, claimed that she had been discriminated against on the age ground by the Board of Management of a Secondary School in the competition for the position of Deputy Principal of the School that it conducted in 2014. The complaint was not upheld. The Respondent appealed against some of the findings of the Adjudication Officer.

The Law

The Employment Equality Act 1998 prohibits discrimination in employment. Section 6 of the Act states

• 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

  ( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

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    (i)exists,
  
  The relevant discriminatory ground is set out in section 6(2) of the Act as follows

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

  ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age

  Section (3) states ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

  ( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

• 8.— (1) In relation to—

  ( a) access to employment,

  ( b) conditions of employment,

  ( c) training or experience for or in relation to employment,

  ( d) promotion or re-grading, or

  ( e) classification of posts,

  an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

  (2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

  (3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

  (4) A person who is an employer shall not, in relation to employees or employment—

  ( a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

  ( b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

  (5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

  ( a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

  ( b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

  (c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment

  (6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

  ( a) the same terms of employment (other than remuneration and pension rights),

  ( b) the same working conditions, and

  ( c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

  as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

  (7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

  (8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

  ( a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

  ( b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

• 28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

  (2) In the following provisions of this Part, any reference to C and D which does not apply to a specific discriminatory ground shall be treated as a reference to C and D in the context of each of the discriminatory grounds (other than the gender ground) considered separately.

  (3) Any reference in this Act to persons having the same relevant characteristic as C (or as D) shall be construed by reference to the discriminatory ground in relation to which the reference applies or, as the case may be, in relation to each of the discriminatory grounds (other than the gender ground) separately, so that—

  ( a) in relation to the F51 [ civil status ] ground, the relevant characteristic is having the same F51 [ civil status ] as C (or, as the case may be, as D), and

  ( b) in relation to the family status ground, the relevant characteristic is having the same, or the same lack of, family status as C (or, as the case may be, as D),

  and so on for each of the other discriminatory grounds.

• 85A. — (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 him or her, it is for the respondent to prove the contrary.

  (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

  (3) Where, in any proceedings arising from a reference of a matter by the Authority to the F153 [ Director General of the Workplace Relations Commission ] under section 85(1) , facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

  (4) In this section ‘ discrimination ’ includes —

  ( a ) indirect discrimination,

  ( b ) victimisation,

  ( c ) harassment or sexual harassment,

  ( d ) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

  (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 ( S.I. No. 337 of 2001 ), in so far as they relate to proceedings under this Act, are revoked.

The Respondent is a Secondary School located in the Mid-West of Ireland. In 2014 its then Deputy Principal was due to retire and as a consequence it organised a competition to fill the post when it fell vacant.

The Complainant is a Secondary School Teacher who was employed in the School in which the vacancy arose. She applied for the position.

She was shortlisted for interview and subsequently interviewed by the Panel constituted to conduct the competition. She was not the successful candidate. Another Teacher from the School who was sixteen years younger was appointed to the post.

Complaint

The Complainant submits that her age was a factor in the decision-making process and that it adversely affected her in the competition. She submits that a younger person was the preferred candidate and that age was a factor in that decision. She complained to the Equality Tribunal that she was discriminated against by the Respondent on the age ground within the meaning of Section 6(1) (a) and Section 6 (2) of the Employment Equality Act 1998 in that she was denied access to promotion within the meaning of section 8 (1)(d) of the Act.

Preliminary Matter

The Adjudication Officer issued her Decision on 4 April 2016. The Complainant, through a family member, notified the Court by email on Friday 13 May 2016 of her appeal. This was followed up with a more detailed statement of appeal on Monday 16 May 2016 the day after the statutory time limit for submitting an appeal to the Court expired.

The Respondent submits that the email submitted for the Complainant was no more than an intention to appeal, did not meet the requirements of the Act and that the subsequent formal lodging of the relevant appeal documents was outside the statutory time limit. It submits that the appeal is not properly before the Court.

Having considered the content of the email of 13 May the Court finds that its wording is sufficient to constitute an appeal under the Act and accordingly holds that it is properly before the Court.

Procedure

The Court invited the parties to make written submissions on the complaints before it. Those submissions were very detailed and comprehensive and assisted the Court greatly in its consideration of this matter.

The Court convened a hearing to determine whether the Complainant had, within the meaning of Section 85A of the Act, established facts from which it may be presumed that there had been discrimination in relation to her.

Facts Established

The Complainant established the following facts in that hearing: -

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  1. Though she did not draw up the job specification for the post the Principal addressed the Interview Panel at the commencement of the process setting out the local context in which the School operates including references to information technology in the School.

  2. The Principal gave references to two of the candidates who had applied for the post, the Complainant and the successful candidate

  3. The Principal went on to serve on the Interview Panel.

  4. The Principal formally discussed those references with the Chairman of the Interview Panel before the interviews began

  5. In answer to the question, “Would this person be a serious contender for the post of Principal if such a position were available in your school”, the Principal answered “No” in respect of the Complainant and “Yes, on Board of Management for the past two years, she knows the situation” in respect of the successful candidate.

  6. The successful candidate served on the Board of Management with the Principal and the Chairman of the Board of Management who also served on the Interview Panel. This fact was adverted to by the Principal in answer to the question outlined at 5 above.

  7. The successful candidate had been given access to information technology (I.T.) training in the School while the unsuccessful candidate had not had similar training.

  8. The majority of staff that had been given access to I.T. training were younger more recent additions to the staff. Older more experienced staff members were not as prominent in that training.

  9. The Principal had made reference to the importance of I.T. in the School context briefing she gave to the Interview Panel.

  10. The Principal gave the Complainant considerably lower marks than the other members of the Panel.

  11. The Principal did not mark the successful candidate in quite the same way.

  12. Neither the Principal nor the Chairman of the Interview Panel disclosed to their colleagues that the Principal had given two of the applicants reference

  13. The Chairman of the Interview Board did not advise his colleagues that the Principal had expressed different views as to the two candidates’ suitability for appointment as a Principal.

  14. The successful candidate was approved to represent the school at local Primary Schools to improve its profile. The Complainant was offered no such opportunity.

  15. The Complainant was sixteen years older than the successful candidate.

Proof of the Contrary

In accordance with Section 85A of the Act the the Court arranged a further hearing to give the Respondent an opportunity to prove the contrary.

The Respondent made extensive submissions on the procedure it adopted to fill the vacant position.

In that regard the Board of Management appointed a Panel of people to run the competition, assess the applicants, develop a short-list from amongst the candidates, conduct interviews amongst those shortlisted and finally to choose a candidate to recommend to the Board of Management for appointment to the vacant position.

The Interview Panel consisted of five persons who were either chosen ex-officio, the school Principal and the Chairman of the Board of Management, or appointed to the panel, namely, three other persons with educational backgrounds who were chosen for their professional and management experience in the sector. The Complainant did not contest the quality or suitability of those people to serve on an Interview Panel.

Four of the five members of the Interview Panel gave evidence to the Court which it has taken into consideration in coming to its conclusions.

Those members of the interview panel who gave evidence to the Court established the following context in which the Court should interpret the fifteen facts outlined above.

The outgoing Vice Principal was asked to prepare a job description for the members of the Interview Panel. He had performed the work for a number of years and was intimately familiar with the requirements of the post. It is arguable that this job description, in line with recommended best practice, should be prepared by the Board of Management. However, the Court takes the view that the retiring post-holder was ideally suited to undertake this task and would in all probability have been asked by the Board of Management to prepare a draft for its consideration had it decided to prepare it itself. In any case the Complainant raised no issue with the job description itself.

The Court finds that the decision of the Principal to provide the Interview Panel with a local context briefing was an inappropriate decision. The Court finds that it placed the Principal apart from the other members of the Panel and had the potential to afford her undue influence with the other members of the Panel.

The Court, however, has heard from three of the members of the Interview Panel and is satisfied that they were not so influenced. They each appear to the Court to be independent-minded professionals with high ethical standards who discharged their task with care and diligence.

In coming to this conclusion the Court has examined the personal notes they took at interview that were made available to it and in addition the individual marking sheets for each of the candidates and compared those with the explanations they each gave for each decision they made.

The Court has also examined the internal consistency of their evidence and found that at no point was there an internal contradiction in the evidence any of them gave to the Court.

On the basis of these two measures, internal consistency and external compatibility with the documentary evidence available to it, the Court finds that their evidence is reliable. The Court also notes that in each case their evidence stood up very well in cross-examination by the Complainant’s Solicitor.

On that basis the Court finds that the Principal, while acting as a member of the Interview Panel, was an inappropriate person to brief it on any matter that might influence or affect its decisions. She should have acted as an ordinary member of the Interview Panel and have participated in the procedure on an equal footing with all other members.

However, notwithstanding that, the Court, on the evidence before it, finds that each member of the panel acted independently and came to their respective conclusions on the basis of the information before them and the candidates’ performance at interview.

The Court finds the decision of the Principal to give references to any candidate was ill-judged and inappropriate. Once the Principal agreed to give candidates references she should not have served on the Interview Panel or having decided to so serve should have disclosed the potential conflict of interest to the other members of the panel.

The Court finds that by giving, not one but two candidates, references for a competition in which she was also assessing them for appointment to the vacant post, the Principal brought about a situation in which it would not be unreasonable to come to the view that she had compromised her independence and had arrived at conclusions regarding the suitability of the candidates for promotion before the interview process commenced.

She should, at the very least, have advised all other members of the Panel that she had issued two candidates with references for the post. They were entitled to know that she had expressed written opinions on the qualities of each of the candidates and had formed a decision on their suitability for further promotion.

She chose not to do so. Instead her actions became known to the Chairman of the Interview Panel when he was asked to check the references before the interview process began. This placed him in a difficult position. He had to decide whether to disclose the information to the other members of the Panel or to proceed with the process without disclosure and ignore the information in his possession. He chose the latter.

In the Court’s view this was the wrong decision. He should have notified the Interview Panel of the Principal’s actions and allowed them to make a fully informed decision as to whether or not the procedure was fair and independent with the Principal involved.

However, what the Court must decide is whether the information impacted on his subsequent conduct.

Having heard his evidence and examined all of the documents available to it the Court finds that the information did not affect his assessment of the candidates. This view has been arrived at following a careful examination of the marks the Panel Chairman awarded to all of the candidates, his explanation for those marks and his overall evidence to the Court.

The Court finds the Interview Panel Chairman a very credible witness. He is very well qualified professionally and has wide experience of management in the education sector. More importantly he strikes the Court as a person with very high ethical standards and someone who acted independently and with integrity in his assessment of the candidates at interview. The Court finds that his decision not to disclose the information to the Panel was an error but it did not affect his impartial and independent assessment of the candidates’ performance at interview.

The Court finds that a further problem arises from the Principal’s reference for the two candidates in question. She expressed an opinion when asked whether this person would be “a serious contender for the post of Principal if such a position were available in your School”, that the Complainant would not be and that the successful candidate would be. In doing so she noted that the other candidate had been a member of the Board of Management for two years immediately prior to the interviews and concluded with the remark “she knows the situation”.

The Court has noted the undesirability of a Referee giving a reference for any candidate in a competition for a position where the Referee is a member of the Interview Panel or otherwise involved. Where a member of the Interview Panel has given such a reference then they are obliged to disclose that they have done so at the outset of the process to all members of the Interview Panel.

The Court further notes that it is always most inadvisable for any Referee, whether they are involved in the competition concerned as a member of the Interview Panel or not, to give more than one candidate in the competition a reference as to give a plurality of candidates references necessarily conflicts the Referee as between those candidates and invites invidious comparisons to be drawn from the contents of the references with respect to those candidates.

The question arises as to whether or not the successful candidate's membership of the Board of Management favoured her in the eyes of the Principal and of the Chairman of the Board of Management who was also a member of the Interview Panel. This is particularly the case as the Chairman told the Court that he had been invited to join the Board of Management by the Principal and that their families were well known to each other.

The Court considered these questions in the light of the evidence before it. The Court finds that the Chairman of the Board of Management is an experienced retired Primary School Principal who discharged his duties with professionalism and integrity. The Court found no evidence to support a proposition that he was influenced by his prior knowledge of either candidate or by his professional working relationship with the Principal of the School.

The Court examined the documentary evidence available to it and listened to and considered the oral evidence he gave in the course of the hearing. On that basis the Court finds that he conducted his assessment of the candidates on the basis of their performance at interview and was not influenced by any prior knowledge of any of them.

The Court considered the Complainant’s claim that the successful candidate had been given access to information technology training in the School while the Complainant had not had similar training or opportunity.

The Court finds that the impugned technology training was arranged by the retiring post-holder while the Principal was on maternity leave. The primary beneficiary of the training was the School Secretary who required access to it for her work in administering the School records. Other members of staff made themselves available for it on a self-selection basis. Anyone who expressed an interest was accommodated as far as possible. The Complainant told the Court that she had not sought the training. She also told the Court that she was computer-literate, had a qualification in the area and had recorded her class notes on the computer. In effect she told the Court that she was an early adaptor of computer technology in the School.

The Complainant’s contention was that younger staff members were given preferential access to the new technology and to relevant training associated with it.

The Court finds, on the evidence, that the adoption of new technologies amongst the teaching staff was largely a matter of personal choice. Some people adapted to it quite quickly and made their expertise available to other members of staff. The Court finds no evidence of a policy of preferring younger candidates for access to the technology or to associated training opportunities.

The Court notes that the pioneer in the introduction of the technology and its main champion was in fact one of the oldest members of staff who had an interest in the area.

On this basis the Court finds no evidence to support the contention that there was any age bias in the availability of access to information technology or to any related training. Indeed, the Court finds that this contention was thoroughly answered by the Principal in her evidence to the Court which stood up in cross-examination by the Solicitor for the Complainant.

The Court has come to a similar conclusion in relation to the contention that the younger successful candidate was preferred in relation to the role of representing the College through visits to Primary Schools in the School's catchment area. The Court finds that this was a volunteer role that was open to anyone who put themselves forward to undertake it. It was similar to other roles in the School where Teachers undertook sports activities or other extra-curricular duties depending on their interests.

The Court examined the contention that the Principal gave the Complainant considerably lower marks than the other members of the Interview Panel.

On a cursory examination this is undoubtedly the case. However, when the marks are analysed in detail what emerges is that while the absolute value of the marks the Principal awarded the Complainant were lower than those awarded by other members of the Panel, the rank order of the marks was consistent with those of the other Panel members.

The Court also looked at the allocation of marks by the other members of the Panel. What these disclose is that the marks awarded by the Panel members varied considerably in a manner that is consistent with independent marking based on individual assessment of performance.

There is no pattern of absolute marks awarded by each of the Panel members. Some awarded high marks to candidates in response to specific questions while others awarded considerably lower marks for that same response.

However, as stated above there is a consistent pattern to the rank order that emerges from the marking. The Court could identify no correlation between the marks awarded by the Principal and the ages of the respective candidates. Nor did the marks awarded by the other Panel members disclose such a correlation. Indeed, the Complainant made no such general contention in her submissions. Instead she contended that the difference in age between the successful candidate and herself was the primary evidence of age discrimination.

The Court does not accept that view. All of the candidates had an age. All of the candidates were awarded marks on the basis of their interviews. Those marks disclose no age correlation that has been drawn to the Court’s attention nor that it could identify from the documents before it. Rather the marks awarded vary widely but do not correlate in any way with the ages of the candidates.

The Complainant submits that the questions asked at interview did not allow her to disclose her management experience and that this favoured the younger candidate who did not have such comparable experience.

The Court examined this submission in detail. The Court finds that the questions asked at interview were open in nature and provided all candidates with ample opportunity to develop their answers in such a way as to highlight their strengths and experience including their management experience.

The Complainant did not avail of that opportunity where presented. Instead she answered the questions literally and confined her answers to the literal questions asked. Indeed, the Complainant in her own evidence to the Court acknowledged that she did not perform as well as she might have at her interview.

Other candidates took each question as an opportunity to display their experience and suitability for appointment to the post. They appear to have impressed the Interview Panel with the expansiveness of their answers while the Complainant adopted a more literal approach confining the scope and reach of her answers.

Having considered the evidence of the Complainant and of the members of the Interview Panel the Court finds that the Complainant was placed at no disadvantage on the age ground by the questions asked by the Interview Panel. If the Complainant was restricted in the answers she gave it was the result of the approach she adopted at interview and not the result, as alleged, of a biased set of questions that was designed to advantage a younger candidate.

The Complainant contends that she was better qualified than the successful candidate and that this was not reflected in the marks awarded by the Interview Panel.

The Court examined the educational qualifications of both candidates and has found that they were similar in nature and disclose no great academic distinction between them.

On the basis of its examination of the evidence before it the Court finds that the Complainant had prima facie grounds to believe that she had been or may have been discriminated against on the age ground in the interview process. However, when the detail of the procedure was examined it was found to be less than perfect but was not discriminatory on the age ground.

Finding

The Court finds that the Interview Panel conducted its business without any conscious or unconscious regard for the ages of the candidates but instead marked them on their performance at interview against a set of answers to questions that were fair and free of age bias.

Reasonable Belief of Complainant

The Complainant is a very impressive person who gave honest and measured evidence to the Court and had prima facie grounds for forming the view that she had been or may have been discriminated against on the age ground and established facts that gave rise to that belief.

However, the Court finds that the Respondent has discharged its obligation to show that the decisions it took in this case were free of all discrimination on the age ground.

Determination

For the reasons set out above the Court finds that the complaint is not well-founded. The appeal is rejected. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
31 August 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.