Complainant

Respondent

Anonymised Parties

A Primary School Teacher

Board of Management of a Primary School

Representatives

Breffni O'Neill, Human Resources Consultant

Edel Kennedy. Mason Hayes & Curran Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00016198-001

07/12/2017

I have exercised my discretion and have anonymised my decision. In so doing I have given regard to the complainant’s submissions on her continuing intention to seek work closer to home. I have recorded an amended the legal title for the Respondent on consent.

The Complainant was represented by Breffni O Neill, Hr Consultant and the Respondent by Edel Kennedy at Mason Hayes and Curran Solicitors.

This case concerns a claim of discrimination on gender and family status in relation to getting a job.   The Complainant cited the most recent date of discrimination as 23 October 2017. The Complainant submitted the name of a Male Comparator who did not have children in support of her complaints. The Respondent refuted the claims.

The Complainant has been a full time Primary School Teacher since 2007. She relocated as part of a defined period job swop programme from School (A) in September 2015. Her base school, where she had worked since 2007 received a reciprocal transfer from the Respondent school (B). The transfer was prompted by the complainant buying a house nearer the city

The transferee to School A resigned her position in September 2017 which resulted in a competition for a permanent appointment at School B, the respondent school. The Complainant submitted that she was subjected to discrimination based on her gender and family status during the selection process. She also submitted that she had been discriminated against in getting a job.

The Complainant experienced some disquiet from the Principal when she sought to change her name on the school role following her marriage in Summer 2016, she   also experienced difficulties at the school in March 2017 when she sought time off for an ante natal scan. Ms C, the school Principal queried her entitlement and category for the requested leave. The Complainant was taken aback when Ms C asked her when she intended to share news of her pregnancy with the remainder of the staff? The Complainant was confused by Ms Cs demeanour when she informed her that “she was still small and could leave it for a while”. The Complainant clarified her entitlement by way of circular the next day.

Subsequently on 24 April 2017, the complainant was denied entry into a localised raffle for a Movement skills course during her maternity leave. She was disturbed and very upset by this.

The Complainant commenced sick leave towards the end of her pregnancy and at the commencement of the school year in 2017. She subsequently learned leaned that her transfer partner had resigned as she had accepted a job in another school. The Complainant was to be permitted to remain in School B until the end of the school year. She understood that succeeding at securing her transfer partners job on a permanent basis was her only hope of remaining there. If she was unsuccessful she knew that she would have to return to School A.

The Complainant delivered her baby on September 24, 2017, three days before the position was advertised. She applied and attended for interview on 23 October 2017. The Complainant submitted that there was a marked hesitancy regarding advertising the position at the school.

The Interview Panel consisted of:

1 Ms C   Principal School B

2 Mr G Chairman Board of Management

3 Mr F   External Principal

The Complainant submitted that during her interview, while the complainant was on a period of protective leave, on 23 October 2017, the Principal, Ms C asked the Complainant “conas ata a baba? (direct translation, how is the baby?) The Complainant asserted that this should not have been asked and believed it was done to make her uncomfortable and expose her as a Mother to a young baby.

Earlier on 28 June 2016, the complainant approached Ms C seeking to amend her staff name to her married name. Ms C told the complainant not to change her name on marriage and communicated that she had regretted changing her own name on marriage. This allowed the complainant to conclude that Ms C, as the School Principal was anti-family, which she found very upsetting as she had commenced an application for other official documentation in her married name.

On 25 October, the Complainant learned that a less experienced male teacher with inferior qualifications and without probation was chosen for the role and the complainant submitted that the interview scores were manipulated with a view to achieving this outcome. Mr D, the successful candidate was only conditionally registered with the Teaching Council.

The Complainants Representative submitted that the complainant was asked a discriminatory question at the very start of the interview. Conas ata an baba?

He also raised an anomaly and imbalance in the allocation of marks to each of the 6 categories

Relevant Qualifications

Relevant experience

Class room management

Understanding of Mainstream

SEN Curriculum

Cumas sa Ghailige

Additional Skills /Talents to benefit School

The Candidates Chronology was shared.

Candidate A (Complainant) Candidate B, (Mr E)

Master’s in Education                 Bachelor’s Degree

Probated 2007                             Not probated

10 years in mainstream               1 year abroad                                        No mainstream teaching experience

Evidence of Complainant:

The Complainant submitted that she was seeking an employer proximate to her home when she activated her transfer request. The Complainant had married in July 2016 and sought to change her name on school records. She detected a marked hesitancy from the Principal who asked her to think about it as she had regrets at having changed her own name on marriage. By this stage, the complainant had already altered her name on her passport. The name was changed but was accompanied by a resistance.

During March 2017, the complainant asked for a day off to attend an Ante Natal appointment. She was aware that her friends at School A had benefitted from this time off. The School Roll number changed on relocation and the Principal hesitated before agreeing to sanction the time off. The Complainant submitted a Circular that covered the request. The Principal thanked her for this.

The Complainant became distressed when the Principal asked her when she intended on sharing news of her pregnancy with the staff. The Complainants parents went even aware at that stage. She became uncomfortable when the Principal told her that she thought she would “get away with it “until 5/6 months” gestation. She formed the opinion that pregnancy was not to be celebrated at the school.

On 24 April 2017, the Principal came to the Pre- fab outside the back door of the school and informed the three teachers in attendance that a Course was coming up in May but there was no point in the complainant applying as it “would be a waste to upskill”. At a follow, up staff meeting the other teachers were asked whether they had done the raffle for the two places on the course.

The teacher with whom the complainant exchanged posts informed her of her resignation by phone and wished her well for her imminent delivery. There was some confusion whether the resultant vacancy would be advertised or taken from the Diocesan panel. The Complainant was reliant on information from the Staff Representative on the school Board. Some days later she received a call from the Principal saying that she was on the verge of announcing a competition for the vacancy. The post was advertised on September 26, 2017 and the complainant applied. She commented that the notification of the invitation to interview was very vague and did not delineate the intended weighting to be applied to the stated criteria.

The Complainant confirmed that she had not attended an interview since 2010-2011 but nonetheless understood that she had performed well during the interview. The interview structure was different than what she remembered with more open-ended questions. She was miss led by the weighted categories and genuinely taken aback by the style of questioning.

She submitted that the methodology of the interview was disconnected and taken aback by the peripheral testing of Irish. She was surprised to be asked on Catholic ethos and was disturbed by the emphasis on special skills/talents. She contended that the interview was a sham and she believed that the process was manipulated in favour of the successful candidate Mr E. She held a very strong view that her impressive credentials of B. Ed honours, Masters, Teaching Council Registration along with her 10 years of solid and varied experience vis a vis Mr as three years should have anchored a more favourable reception from the Selection Board. Mr E had informed her of his own very limited experience in teaching areas (Autism and experience in the middle East) the complainant believed that the Selection Board wanted him to rank higher. In pointing to her 10 marks for experience and his 9 marks for experience, she reflected that this was illogical.

The Complainant prepared for the interview on October 23 ,2017 and attended some three weeks after she delivered her baby boy. She had not received structured Interview preparation training. Mr F met her at 4pm and accompanied her to the Library where the interview was held. He mentioned that she had not met Mr G, the external Assessor. At that point the Principal, asked her

“Conas ata an baba?” She had shaken Mr Gs’ hand and was stunned and somewhat shaken by the Principals utterance but defied any attempt made to “rattle her “by the comments. She recalled that she performed well at interview. She was aware of the protocol surrounding endorsing a successful candidate.

A couple of days passed before she received a text from a colleague to inform her that the post had been given to Mr E. She received a letter to that effect between 1 pm and 2 pm to her home on the same day. She submitted that this action amounted to clear discrimination.

Straightaway, she became confused as she was aware of the gap in Mr D’s experience and qualifications and her own status in that regard. In response to a question from her own representative, the complainant confirmed that in her experience of interviews the most qualified and experienced candidate got the job. She confirmed that men had not been favoured over women in School A, her former school. The Complainant was particularly disturbed that the other two candidates were addressed personally by the Principal on the outcome of the competition and she had not been addressed in a like manner.

She denied that the Principal had whispered the “baby “comment and she recalled that she was in the middle of the room when she heard it. She recalled that she had not responded to the remark. the Complainant confirmed that she wasn’t confident in challenging her exclusion from the Course.

During cross examination,

The Complainant confirmed that she had participated in three internal interviews in school A. She had received the criteria in advance and was aware that another school received the selection criteria with weightings attached.

She confirmed that she believed that she needed the Principals approval before she changed her name following her marriage. She was relieved when the change was activated. She denied that it was reasonable for a manager to enquire on when details of her pregnancy should be shared with people. The Complainant confirmed that once the circular on the Ante Natal Day approved absence was shared with the Principal, the day off was sanctioned.

The Complainant confirmed that she thought it unusual that the one question on the catholic ethos was not graded. The Complainant also disputed Mr Fs proficiency in Irish for the interview.

In closing, the complainant’s representative submitted that the complainant had attained the burden of proof of discrimination, Gillen applied. The Complainant was deemed as having a higher level of qualification and experience and was discriminated against.

The Complainants representative made a responding submission that 80% of teachers employed by the school over the previous 5 years were male and asserted that the School had deliberately started to prefer male teachers. He also made the point that by awarding 10 points (30) for the complainants 10 years’ experience, the Selection Board acted in an illogical manner when Mr Es’ mark was 9 (27) instead of the 4 actual calendar years. He concluded by submitting that the weighting of the subjective criteria was disproportionately balanced against the objective criteria which was deliberately designed to favour the male candidate, Mr D.

The Complainant relied on jurisprudence of Dept. of Health and Children V Gillen, EDA 0412 which drew on the potential for discrimination to arise in a void of interview records.

Northern Ireland: Wallace V South Eastern Education and Library Board NI 38 [1980] IRLR 193.

The Respondent refuted the claims of discrimination. The Respondent representative outlined that the respondent school had an extremely strong record of employing female employees where family and gender status had never been an issue.

The Respondent discounted the events referred by the complainant in conjunction with the “name change” and the ante natal appointment as being outside the statutory time limits for submission of complaints.

The Respondent outlined the background to the complainant’s arrival to School B, which was at one with that described by the complainant. Once School B received the resigning teacher’s notification of leaving, they deemed they had a permanent vacancy suitable for filling. Some hesitation followed where the Diocesan panel was thought to be the first port of call, until this was deemed “cleared”. The position was advertised on 26 September 2017. Ms C, in her capacity as Principal alerted the complainant to the vacancy and received a text confirming that she had applied for the position.

One Permanent Vacancy for a Mainstream Class Teacher with a closing date of Tuesday, October 10, 2017.

The competition yielded 30-40 applications which were shortlisted and reduced to 4 candidates, all of whom were deemed “probated “One late application was not considered. This process was prefaced by an agreed selection criterion to accompany the interview process. The four identified candidates were invited for interview on 23 October and received:

1.       Selection criteria to be relied on

2.       Schedule for Catholic Schools

Ms C and Mr G (extern) began work on formulation of questions for the interview.

One of the candidates declined an interview and the competition field was reduced to three. Two Male and one Female candidate. (the complainant)

The Respondent submitted that the three Assessors, Ms C, Mr G and Mr F (chair of board of management) met to discuss the post, finalise the questions and delegation of questions and the marking scheme in advance of  the interviews.

Relevant Qualifications   10 marks per Assessor

Relevant experience            10 marks per Assessor

Class room management       20 marks per Assessor

Understanding of Mainstream

Plus, SEN Curriculum                        20 marks per assessor

Comas sa Ghaelige           20 marks per assessor

Additional Skills /Talents to benefit School    20 marks per assessor.

The Respondent submitted a list of questions for the Investigation. Mr G in his capacity as Extern led the conversation on Interview preparation and guided the team in understanding which questions related to different criteria and to assist in identification of a high-quality answer.

The Interviewees were afforded a 30-minute slot each in the late afternoon of Monday 23 October. All candidates were asked the same range of questions and Individual marking sheets were completed by the Assessors. The candidate was ranked third of the three candidates.

The Respondent outlined that Ms C had indeed asked the complainant “Conas ata an baba?” but wished for the correct context and background to be applied to the utterance. On entering the interview room Ms C had stood to greet the complainant with a handshake as she arrived. Ms C had not seen the complainant since the birth of the baby, made the enquiry as part of that greeting towards a colleague with whom she enjoyed a good relationship. The Complainant had forwarded Ms C a gift and thank you card dated 30 June 2017 which endorsed her positive experience at the school. The interview had not yet begun.

The Respondent submitted a lay out map of the Interview Room which placed Ms C on the complainant’s right-hand side behind an interview desk, Mr G on the left-hand side and Mr F in the middle. Neither of the Assessors had heard the remark and the interview proceeded on the planned basis without any further reference to gender or family.

Fundamental skills Movement Course:

The Respondent outlined that Ms C had imparted details of the forthcoming course but did not choose any attendee, rather she left it for the three named teachers to decide between them. The Respondent disputed the complainant’s recollection that she had been purposefully excluded from attendance due to her prospective maternity leave. The Respondent went on to share that the complainant had previously completed a module on the topic as part of her M. Ed and she had also attended a Summer school on the topic.

The Interview Board retained Interview notes, marking sheets, letter of recommendation and aggregate markings. The Respondent advised that the complainant was provided with copies of the Assessor notes at their request.

Markings:

The Respondent disputed that the interview was structured in such a way to favour the less experienced male candidate or that Relevant Qualifications and Experience were wrongly weighted. The Respondent contended that a cumulative 20 points was always applied to these criteria in the case of a permanent appointment. The Complainant was recognised as better academically qualified that the other candidates and this was realised by her securing maximum marks, while the other candidates were proportionally deducted. Mr B scored 8 out of 10 in qualifications and 9 out of 10 in experience.

Probation:

The Respondent outlined that Mr B had been probated prior to his first appointment at School B and a necessary pre- requisite for inclusion in the interview process. the Respondent distinguished between “Registration “status and “Probation” The successful candidate was expected to complete 10 workshops prior to July 2018, but this did not compromise his probation status which he has secured prior to the competition.

Expectation of Higher Marks Mainstream and Special Education Curriculum:

The Respondent detailed that the successful candidate had experience in 3rd class, combined 3rd and 4th class, Special class teacher in an Autism Unit in addition to Mainstream in the Gulf. The Respondent went on to differentiate the complainants experience as Senior Infants, 2nd class and Learning support. The Respondent distinguished in markings for experience/length of service and in assessing a candidate understanding of curriculum issues.

Cumas an Gaeilge.

The Respondent sought to respond to the complainant’s contention that by asking two questions in Irish, was an insufficient gauge in which to capture a fair response in terms of the complainants eight years of teaching Irish in a classroom. The Respondent outlined that the two questions translated were:

1 How would you promote Irish in your classroom?

2 What type of written Irish activity would you undertake with a fifth class for example?

The Respondent submitted that the school had stated its objective “to promote Irish in the school “and was thus listed as a criterion in both the “Gross Selection “marking grid and the “Criteria for interview”. They believed they were justified in applying a 20 % weighting to this field. The Complainants standard of Irish was not being assessed but rather her answers to the open-ended questions.

Additional Skills/Talents of Benefit

The Respondent submitted that the school was presiding over a skills deficit through many resignations/ retirements and needed some spontaneity in the school’s skills set

“……a practical balance of the available qualifications, skills and talents is sought to enable a school to provide the best teaching in curricular subjects but also to cater for activities that provide personal development opportunities for our pupils which are key to enhancing the reputation of the school, influencing the annual new infant enrolment and ensuring the ongoing viability of the school ….”

Clarity on how questions relate to criterion 40% to 2 criteria, 17 % of questions allocated 40% of marks.

The Respondent submitted a table on questions asked and the marking criteria and submitted that all questions were designed as open-ended questions to allow the candidates answer as completely as they could.

The Respondent went on to deny that that the markings were manipulated to favour the less qualified and less experienced. They submitted that the successful candidate’s marks were reduced to reflect his shorter service as a teacher

Candidate 1 The Complainant     256

Relevant Qualification                   30

Relevant Experience                       30

Mainstream and SEN Curriculum 52:60

Classroom Management                 51:60

Gaeilige                                       49:60

Skills /Talents                         44: 60

Additional Allegations of Discrimination against Ms C

The Complainant had married prior to her transfer to School B and had retained her maiden name. The Respondent disputed taking any issue with the complainant’s request to change her name for school records purposes and submitted some extracts from 2016 Roll which demonstrated the change.

The Respondent submitted that the School had no issue in releasing the complainant to her Scan appointment and disputed any discrimination.

The Respondent relied on the jurisprudence contained in

A National School V A worker EDA 151. The Respondent argued that the Complainant was given full marks for qualifications held and this was insufficient to shift the probative burden of proof to the Respondent

Brennan V St Michaels House EE 19/1997

Where the Equality Officer established sufficient objective reasons not linked to marital status /pregnancy for favouring an appointee to a vacancy.

UCD and Dr Eleanor Higgins ADE/12/30

The Respondent submitted that it was not the role of the Court /Adjudicator to substitute her views on the merits of candidates for those of the designated decision makers …. the priority role should be that the selection process is not tainted by unlawful discrimination.

The Respondent submitted that there was a clear, transparent connection between assessment of candidates and the eventual result of the process. The Respondent contended that Higgins applied and the complainant had not previously taken issue with the Respondent on the competencies or criteria utilised.

O Halloran V Galway City Partnership EDA 077

Where the Labour Court commented on the Employer prerogative to set qualifications/criteria freely unless the “chosen criteria are not indirectly discriminatory “.

The Respondent concluded by accepting that the Complainant is entitled to disagree with the selection board not to appoint her to the post but she had not established any prima facie case of discrimination as the Interview process had been conducted in a non-discriminatory manner.

Evidence of Ms C, Principal

Ms C had been a teacher for 30 years and a Principal from 2012.She had completed interview training. She led a team of 23 teaching staff, 17 Female and 6 male (inclusive of the interview candidates). The School also facilitated job sharing.

Ms C confirmed that the criteria for interview was approved in accordance with protocol.

Request for leave for Ante Natal Appointment:

Ms C was happy to grant the leave requested, her secretary inputs this information onto the system OCLS. She acknowledged that the complainant looked very well in her early pregnancy and it “wasn’t for me to blab “.

Ms C stated that she got on well with the complainant and it wasn’t her intention to disagree on her request to change her name. The approval for name change was not hers to make and it was not necessary to discuss it outside operational level through the Secretary’s office.

Ms C denied that she pre-selected candidates for the FTM course but rather left it up to the complainant and both of her colleagues. She denied stating that the places should be raffled and nobody complained.

In recalling the evening of the Interview, she had not seen the complainant since June 2017 and she asked her quietly how her baby was to which she answered “go maith “translated as “good”. Her overall recollection was that the comment had no visible impact on the complainant. Ms C had no idea that she was distressed and felt that she “was herself”

She confirmed that she had notified the complainant of the outcome of the interview by letter and she had spoken to the other two candidates but couldn’t really recall what she said. The letters issued on the same day.

Ms C stated that she was very shocked regarding claims of discrimination, she understood that she had been equal to all candidates.

In response to the Complainants representative questions Ms C confirmed that out of the last 6 confirmed permanencies 5 were male and 1 female. Ms C confirmed that regularisation under the Fixed term act was a factor in one of the male permanencies.

She denied that an emphasis on cumas sa Ghaeilge was misplaced and she saw it as being one of the “needs of the school “where the school maintained strong links with the Irish language.

She denied resisting the complainants attempts to change her name following marriage. She denied any attempt to exclude the complainant from FTM classes.

Ms C confirmed that there was some uncertainty regarding how the vacancy would be filled in September 2017. She felt that she got on well with the complainant and it was instinctive to text her about the interview. In addressing questions on male make up of school staff, Ms C confirmed that “a number of men had retired “.

Ms C confirmed that the complainant received full marks for her comprehensive length of service. When asked why the question “conas ata an baba “was expressed in Irish, Ms C confirmed that Irish was her first language.

Evidence of Mr G, External Appointment to Selection Board

Mr G was the Independent Assessor to the Board and a retired Principal. He detailed extensive experience in Interview training, Legal workshops and Equality training. He participates in an average of 10 interviews per year. He was not acquainted with the other Assessors involved. He was aware that School B was a new school. He contended that his participation in the selection process was undertaken in a fair and proper manner. His role was to advise the Selection Board, set the criteria, ensure that marking was free from discrimination and the weightings were correct.

He outlined that a Teachers Registration was not a condition of the gross selection short list. Mr G was aware of a late application which was discarded. He was also aware that once probated, the eventual successful candidate was to undertake 10 workshops. He detailed that “music and Sports “were topics on the curriculum and the school had a declared need for Irish language. He submitted that the candidates selected for interview in this open competition were expected “to sell themselves as a competent teacher in a classroom setting “as “the best candidate for the job “on a broader plain that a mere academic stance. He confirmed that all 12 questions asked related to the pre-set criteria.

He recalled the interview and the distribution of the marking sheets. He had prepared ideal answers based on a common understanding of high qualities. Assessment of classroom management and relationships was a key driver in the interview process. Ideas were sought on how to promote Irish at the school. He completed his score sheet just before the other assessors. Mr G clarified that an Irish written test was never a component of an interview.

All three candidates performed well and were successful at interview. The documents were organised and letters prepared for the successful and disappointed. He denied that telephone contact was made.

Mr G stated that he was unaware of the complainant’s family status. He had no memory of the

“ Conas ata an baba ? “utterance by Ms C. He confirmed that the interview had been conducted “totally appropriately “and the criteria were void of discrimination.

During cross examination, Mr G confirmed that the interview was based on competency based assessment. He confirmed that Mr F, as board chairman had not participated in setting the criteria and he had instructed Ms C to appraise him of the agreed criteria. He confirmed that the candidates were asked questions based on the curriculum and he was guided by Ms C on the special emphasis on Irish language.

He reaffirmed that he had not heard the “baba” utterance. Mr G confirmed that due regard was applied to the complainant’s extensive experience. He awarded her a cumulative mark of 82 /100 and he awarded Mr D 92/100.

Evidence of Mr F, Chairman of Selection Board

Mr F was Chair of the Interview board. He had undertaken Interview training and participated in 2 to 3 interviews most years. He did not accept that his capacity for Irish was limited as he engaged in occasional sentences with Ms C.

Mr F disputed that the interview process was tainted by discrimination. He confirmed that he would have raised concerns if he was worried about the selection criteria. They were only ratified following his endorsement.

During cross examination, he couldn’t recall the number of years since he undertook the interview training. He confirmed that the letters of notification were posted on the same day and contained the same wording.

In closing the Respondent contended that the process of selection was fair and anchored on the quest for the most suitable candidate. The Interview board had attained their objective in this regard and while the Respondent acknowledged the complainant’s disappointment, they disputed that she suffered discrimination. during the selection process,

In responding to the Complainants supplementary comments, the Respondent detailed that avenues to permanency at school B had originated through the Diocesan panel and through the effluxion of time for Fixed term workers and the school had not developed a tendency to prefer male teachers over female teachers. They included a template of the letter of regret following the complainants interview. This was accepted by the complainant as a template of her letter, but not the original letter.

I have given careful consideration to the extensive submissions made by both parties in this case .I fully accept that my role is not to second guess an appointed Interview Selection Board on the most appropriate candidate for the postion of permanent teacher ,I will , however consider whether the respondent directly discriminated against the complainant on the gender and family ground in terms of section 6(2)(a) (c ) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have considered all the evidence, both written and oral, submitted to me by the parties.

Section 6(1) of the Employment Equality Act, 1998 provides that:

"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."

Section 6(2) provides that as between any two persons, the discriminatory grounds are, that

(a)    That one is a woman and the other a man, (c) That one has family status and one does not.

Section 8(4) of the Act prohibits an employer from presiding over rules or instructions which may lead to discrimination.

Section 85 A of the Act     establishes the burden of proof in reaching prima facie case of discrimination

The Labour Court in the case of Flexo Computer Stationery Limited v. Coulter stated:

"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by the Court in Mitchell v Southern Health [2001] ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If those two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."

The Labour Court subsequently stated in DPP v. Sheehan:

"What the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred. There is no exhaustive list of factors which can be regarded as indicative of discrimination in the filling of employment vacancies. However, an inference of discrimination can arise where, for example, a less qualified man is appointed in preference to a more qualified woman Wallace v. South Eastern Education and Library Board [1980] IRLR 193. It can also arise from an unexplained procedural unfairness in the selection process."

The facts of this case surround an employment experience during a transfer situation. While I accept that the complainant raised the issues of

1.       The name changes

2.       The Ante Natal Appointment

3.       FTM course

As forming a continuum of discrimination and evidence of bias towards her evolved family status. I am not satisfied that I can draw any inference of discrimination from these instances. I say this as the name change and ante natal appointment were agreed within a short length of time and any dissatisfaction was not woven through the grievance procedure at the time. I could not establish that the complainant was excluded from the FTM selection process.

The Transfer Policy:

I had the benefit of the Teacher Exchange Policy for Primary Teachers dated 2001 revised from 1997. This Policy was designed to facilitate permanent teachers to temporarily exchange their posts for educational purposes. The exchange in this situation was for domestic reasons. This policy prevents teachers resting on redeployment panels from participation. As the complainant’s status as a permanent teacher on temporary transfer interested me, I probed the parties on why a permanent transfer could not be provided from day 1? I found some consensus from the parties here and was encouraged to hear that a pilot for this provision was currently underway in another part of the country.

During my investigation of this case, I was struck by the different categories of teachers in the system, fixed term, fixed purpose, permanent. Those on Diocesan panels and those who were not. This myriad goes to the root of this case as the highest mobility seemed to emerge from the Diocesan panels, yet the complainant needed mobility for personal reasons and was totally dependent on the parameters of the temporary transfer arrangement with an outer limit of 5 years duration.

While the case was not made at hearing, I formed the view that the transfer exchange policy was not designed for the purpose sought by the complainant. In these days of equity between fixed term and permanent workers, it seems remarkable that a permanent teacher would have to re interview to transfer within the realm of the same pay master, notwithstanding the variance in Boards of Management. It also struck me that an interview was not contingent on activation of the exchange policy. I would like the parties to reflect on this view.

The Selection Process:

The circumstances surrounding the interview and the initial hesitancy in pressing ahead were understandably confusing for the complainant, she was at that stage on sick leave and in the final stages of her pregnancy and I appreciate that she was vulnerable. However, I found the double channels of communication which emanated from the Board to be unhelpful.

The complainant has contended that she was treated less favourably on grounds of her gender and family status. She submitted Mr. D, the successful candidate at interview as her comparator.

I had the benefit of extensive documentation from both sides in this case and there was no dispute that the complainant was longer qualified and more experience in teaching than the successful Mr. D, SEHB V Brigid Burke EDA 041 applied.

My role is to explore whether any discriminatory elements were present in the interview process? I am satisfied that the advertisement was free from discriminatory traits. I did notice that there was a cited potential for formulation of a panel on completion of the competition. The Respondent told me that they did not compile a post interview panel. I found this somewhat myopic but not discriminatory. The complainant was rated third on a high marking score of 256, just 10 marks behind Mr. D. It is reasonable to suggest that a panel could have been considered.

However, I must address the Introductory statement uttered by MS C. Both parties accept that the question “Conas ata an baba ?” was posed. Both parties are in conflict on the context and background of the question. The Complainant is very clear that it formed part of the interview process and was stated in full hearing of the other two assessors. The Respondent say that it was whispered and weighted in good will and the complainant herself answered “go maith, / good” For my part, I am mindful of the Respondents 2015 Recruitment and Appointments procedure for Teachers, in particular 6.3 (c) All questions at interview shall relate to the requirements of the particular post. No question shall be asked nor information sought in any form from any applicant which might be construed as discriminatory.

The Complainant had at this stage entered the interview room and the interview process was in commencement albeit none of the scripted questions had been asked. While I accept that the question was asked in a bona fides manner and without discriminatory intent, nonetheless, it was a discriminatory question. I was struck by the complainant’s own evidence that the comment did not compromise her performance at interview. Taken with the clear disparity in qualification and experience Complainant: Mr. D, these raised inferences of discrimination on facts of sufficient significance to move the burden of the proof on the respondent to show that they had not discriminated and to demonstrate objective reasons for preferring candidate Mr. D over the complainant.

The Interview Process

I am satisfied that the preparation for interview was undertaken by the respondent in a very responsible manner. I cannot accept the complainant’s contention that competency in Irish was wrongly promoted and decided at interview. I accept that the school stressed it as a criterion at interview and this was objectively justified in both the evidence of MS C and Mr. G. I found no evidence of discrimination in the questions prepared or asked and the complainant did not point me to any evidence of discrimination in the question she was asked in the body of the interview.

The Complainants representative submitted that the criteria was overly subjective and thus marginalized the potential of the complainant succeeding outside her objective criteria of experience and qualification. He went further and said the process was a sham. I took this very seriously and I spent a considerable length of time reviewing the paper work the remnant scoring sheets and remnant records of answers given to questions retained by the Respondent.

While these were of benefit, I was strongly influenced by the fervor and conviction in the evidence of Mr. F who was essentially the Architect of the Interview process. He set out the methodology of the Interview process and how they were looking for the very high competence factor through a series of open ended questions. I was struck by his passion for the task he took on to find the best candidate for the school. I was also struck by how he expressed the belief that the Respondent had equality proofed the process and this was an important   consideration for the Interview Board .

On reflection, I found that the complainant while very experienced and adept at her position, was not prepared for the expanse of a competency based assessment interview. She told me that she had always witnesses the longest server secure the post previously and I appreciate that this may have influenced her preparation. It was not lost on me that the complainant was in the early stages of child care when she applied for the position and had not secured competency based interview training .

I found a profound openness and transparency in the management of the interview and selection process by the respondent and could not establish any less favourable treatment of the complainant on gender of family grounds. I was unable to support the complainant’s contention that male teachers were now being favoured at the school as the school was predominantly dominated by Female teachers 17:6 male.

I am mindful of   the Opinion of Advocate General Paolo Mengozzi 12/1/2012 in Meister v Speech Design Carrier Systems Gmbh case C -415/10, …The EU legislature has thus provided for a shift in the burden of proof, without however, going so far as to uphold its complete reversal since the long-standing freedom of employers to recruit the people of their choice must not be completely disregarded.

During the complainant’s evidence, she disclosed that she believed that the discrimination arose from stilted notification procedures adopted. I probed this and was again disappointed by the” double banded communication” evidenced by way of an informal text from the school. In the interview documentation, it mentioned that notification of the result would be discussed at interview. It did not seem to have been. This was insensitive. I found that the respondent complied with Section 7.10 on notification in their own guidelines outside the communication to Candidate No 2 in person. I appreciate that the complainant was not in school on that day, but I would have preferred to see uniformity in how they were both addressed in this regard. I appreciate that there was a short delay in time from when candidate no 2 was addressed and when the complainant received her letter. Mr. G told the hearing that all candidates were successful at interview, perhaps it may have been better practice to deem all three appointable.

However, I found the largest omission was in the lack of post interview feedback. This may have helped the complainant to appreciate that she had really scored very highly at interview and to assist with pointers for the future. I found this omission to be insensitive but not discriminatory. I find that the Respondent has demonstrated objective reasons for their selection of Mr D which were not tainted by discrimination on family or gender grounds .

I have concluded my investigation and while I found inferences of discrimination to satisfy Section 85A of the Act, I have also found that the respondent has successfully rebutted the presumption of discrimination on gender and family grounds.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The complainant has established a prime facie case of discrimination which has been successfully rebutted by the Respondent. The claim for discrimination has not succeeded.

Discrimination on family and Gender grounds.