EDA185

This matter comes before the Court as an appeal by Ms Maureen O’Shea (the Appellant) of an Adjudication Officer’s decision made in respect of her complaint under the Employment Equality Act, 1998 – 2015 that her employer, St. Flannan’s College (the Respondent) had discriminated against her on grounds of gender contrary to the Act at Section 8.

The Adjudication Officer, in a decision dated 7^thMarch 2017, did not uphold the complaint of the Appellant.

The Case

The Appellant was a teacher holding a Special Duties post of responsibility in the Respondent school. Special Duties posts of responsibility are assigned to a range of different responsibilities in the school. Some holders of Special Duties posts of responsibility are assigned to the duty of year head. The Appellant in this case was not assigned to the duty of year head.

In February 2016 a competition was held to appoint an Assistant Principal who would be assigned the duty of year head. Year head functions in the school were carried out both by Assistant Principals and by teachers holding Special Duties posts of responsibility.

The competition in February 2016 involved the interviewing of 10 applicants, seven of whom were women and three of whom were men. Two of the female candidates were year heads and three of the male candidates were year heads.

Position of the Respondent

The Respondent submitted that the complaint before the Court related only to the events associated with the interviews held in February 2016 as part of a competition to fill an Assistant Principal post.

The Respondent clarified to the Court that in this case the competition related to the appointment of an Assistant Principal to carry out the specific duties of year head. The Respondent further clarified that historically the function of year head had been carried out by teachers at Assistant Principal level and at the level of a teacher holding a Special Duties post of responsibility. The Respondent also clarified to the Court that appointments to the position of Assistant Principal year head had historically been made on the basis of seniority and that such a system no longer applied in 2016. Consequently, all such posts required to be filled by competition in accordance with relevant circulars of the Department of Education and Science.

The Respondent submitted that the Board of Management of the Respondent met in January 2016 and decided that a vacant position at Assistant Principal level should be allocated to the duties of year head. The Board instructed the Principal to proceed to advertise the post. The Respondent submitted that in accordance with relevant procedures and circulars the selection board met in advance of the interview process and agreed questions to be asked at the interview, the order of questioning and the application of the marking scheme in accordance with the agreed criteria. The Respondent submitted that interviews took place in February 2016 and a candidate was subsequently recommended for appointment. The Respondent submitted that, in compliance with the provisions of the ‘Appeal Procedures for the appointment of Assistant Principals and Special Duties teachers of the Department of Education’ dated 18^thMarch 2015, the Appellant filed an appeal against the appointment of the recommended candidate. The grounds of appeal related to an alleged breach of the appointments procedure. Alleged discrimination on grounds of gender was not a ground of appeal in this process.

The Respondent submitted that in a decision of 12^thApril 2016 the Appeal Board upheld the appeal and recommended that all candidates be re-interviewed. The Respondent submitted that no candidate was appointed as a result of the interview process which is the subject of the within appeal. The Respondent submitted that in the absence of any appointment being made as a result of the impugned interview process, it is difficult to see how the Appellant was treated less favourably than any relevant comparator on the gender ground.

The Respondent submitted that a second interview process was conducted in May 2016 and an Appointment was made to the position of Assistant Principal. The Respondent submitted that no appeal is before the Court as regards the conduct of the second interview process.

The Respondent submitted that ten candidates were called for interview in February 2016. Of those candidates seven were female and three were male. Of the female candidates four were existing Special Duties post of responsibility holders, two of whom were assigned duties as year head. Of the male candidates three were Special Duties post of responsibility holders and were assigned to year head duties. One of the male candidates was voluntarily acting as a year head in the repeat year cycle.

The Respondent submitted that the Appellant had contended that she was excluded from year head training which was conducted prior to the February 2016 interview process. The Respondent submitted that the training in question was provided by the national management body for voluntary secondary schools, the Joint Managerial Body (JMB), and was confined to those assigned to the duties of year head. The Respondent submitted that the Appellant’s ineligibility to attend this training was completely outside the control of the Respondent.

The Respondent submitted that at no time prior to the interview process in February 2016 did the Appellant formally or informally request a review of her post of responsibility duties. The Respondent submitted that a male holder of a post of responsibility had requested such a review in 2013 and, in compliance with agreed procedures, that teacher was assigned duties as year head as a holder of a post of responsibility. The Respondent submitted that the teacher in question was not a candidate at the interview process in February 2016.

The Respondent submitted that the person holding the post of Year Head on a voluntary basis was not advantaged in comparison to the Appellant and although he was a candidate in the impugned interview process he was an unsuccessful candidate for the appointment to the post of Assistant Principal.

The Respondent submitted that no ‘golden circle’ exists in the Respondent’s school in which people are selected without having to compete for promotional positions. The Respondent submitted that the Principal and two Deputy Principals of the school applied for positions which were advertised nationally and filled in accordance with the procedures laid down by the Department of Education and Science for the filling of such vacancies. The Respondent submitted that of the eight Assistant Principal posts in the school, six were filled by seniority before the current process of appointment by competition came into effect.

The Respondent submitted that the Appellant was not discriminated against on grounds of gender and that her gender status had no bearing on her treatment in the promotion interview process of February 2016 which was subsequently annulled.

Evidence on behalf of the Respondent

The Principal of the Respondent school at the material time, Ms CH gave evidence on behalf of the Respondent. As principal Ms CH was a member of the interview board which conducted the impugned interview in February 2016.

Ms CH stated that the same hypothetical questions were put to all candidates at the interview. Those questions related to scenarios involving (a) child protection, (b) conflict resolution, and (c) day-to-day communications.

Ms CH stated that the questions were asked of candidates because the interview board were of the view that any teacher seeking appointment as an Assistant Principal should be able to answer the questions put on these areas. She said that any teacher should be able to ‘grapple with’ the scenarios presented and not just teachers who had experience of performing the function of year head. She stated that the questions were related to the competence of the candidate to deal with these issues and were not related to any individual candidate’s experience of performing the role of year head. She stated that these issues were typical of the issues which were likely to be encountered by an Assistant Principal assigned the duties of year head in the Respondent school.

Ms CH stated that a training programme had been provided by the JMB prior to the interview process. That training programme was addressed specifically to persons holding the function of year head and was not available to teachers generally. She said that the Respondent had no role in, and was not consulted in relation to, the provision of the training programme and was not consulted and had no role in limiting participation to persons who were performing the role of year head at the time. She stated that no marks were awarded at the interview for attendance at the training programme provided by the JMB.

Ms CH stated that in the Respondent school some Assistant Principals were year heads and some were not. She also stated that some teachers holding Special Duty posts of responsibility were year heads and some were not.

Ms CH stated that in 2014 a need arose for a year head for a designated repeat year group and member of staff who was a priest offered to carry out the role with no extra funding and with no time off in lieu. That person was assigned that function on those terms at that time.

Ms CH stated that the Appellant had at no time asked for her functions as a holder of a Special Duties post of responsibility to be re-assigned such that she would act as a year head.

Position of the Appellant

The Appellant clarified to the Court that the matter before the Court specifically related to the asking of certain questions of her at an interview in February 2016. She explained to the Court that no claim was before the Court that events before or after that interview were contended to constitute discrimination contrary to the act. The Appellant clarified that the claim before the Court was that, by asking certain questions of the Appellant at interview, the Respondent had directly discriminated against her on grounds of her gender.

The Appellant outlined her experience as a holder of a Special Duties post of responsibility. She submitted that her experience as such a post holder did not include experience as a year head.

The Appellant submitted that she had requested of the school Principal the opportunity to experience the role of year head but that she had not been afforded that experience. She submitted that a male teacher who had made the same request was afforded such experience upon request.

The Appellant submitted that, in 2016, although some 60% of teaching staff in the Respondent school were female only 27% of year heads were female. She submitted that an impenetrable ‘glass ceiling’ existed prior to and after the impugned interviews in the Respondent School.

The Appellant submitted that the historical arrangement whereby Assistant Principal positions were allocated on a seniority basis discriminated against the Appellant. She submitted that the opportunity to compete for such a position in February 2016 was the first opportunity she had to compete in a transparent manner for the post. She submitted that she was subsequently appalled that the successful candidate had been a male person who had been afforded the opportunity since 2007, as a Special Duties post of responsibility post holder, to carry out duties as year head.

She submitted that at interview she was questioned as to year head scenarios without ever having experienced year head duties. She submitted that she had not been afforded year head specific training in the weeks prior to the interview but that her male colleague had been afforded such training.

The Appellant submitted that she had been afforded lower marks in relation to the impugned questions than her male colleague and that the Principal, who sat on the interview board, was not able to supply an explanation when asked.

The Appellant submitted that certain aspects of the treatment of the Respondent’s submission to the adjudication officer of the Workplace Relations Commission in the first instance hearing of this matter gave rise to concern.

The Appellant submitted that the Respondent school unashamedly invested in male teachers prior to interviews.

Evidence on behalf of the Appellant

The Appellant gave evidence to the Court.

The Appellant stated that at the interview the Chair of the Board said that the position of year head was the first rung of the managerial ladder.

She stated that she was aware of her disadvantage in comparison as the successful male candidate.

She stated that she was not satisfied that all candidates were asked the same questions and that she did not know whether each candidate’s interview lasted the same length of time.

She stated that she did not do herself justice at the interview and that some questions were beyond her experience as a teacher. She said that she did not have the advantage of year head training.

The Appellant stated that before 2016 she had never asked for a swap of duties as a Special Duties post of responsibility holder.

The Appellant stated that certain questions at interview were assessing her competence for a year head role and that she had no other experience than that of a teacher. She said that she did have experience as a mother and an irate parent.

She stated that she was disadvantaged in the interview process as against two female candidates who were year heads and the male candidates who were year heads.

The Legal Position

The Appellant contended that the discrimination complained of was the asking of questions at the interview in February 2016. Those questions were questions asking her to respond to scenarios involving child protection, conflict resolution and day-to-communications. She contended that she did not have the experience as a year head which would best position her to respond to the questions. She contended that the asking of the identified questions was a direct discrimination against her on grounds of her gender.

Section 6 of the Act prohibits discrimination on any of the discriminatory grounds. Subsection (1)(a) of that section provides: -

• (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—

    (i) exists,

    (ii) existed but no longer exists,

    (iii) may exist in the future, or

    (iv) is imputed to the person concerned,

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

  ( a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

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.

Discussion and Conclusions

The matter before the Court was clarified at the hearing of the Court by the Appellant as concerning questions asked at interview for the Assistant Principal Post of year Head in the Respondent School. The Court notes that, for reasons not associated with the within matter, the interview process was annulled by way of an appeal on other grounds to a forum established by relevant authorities for such a purpose. The Court notes that as a consequence of the annulment of the interview process which is the subject of the within appeal no appointment was made as a result of that interview process.

The Appellant clarified to the Court that the contention was that the asking of the impugned questions was a direct discrimination on grounds of her gender. She submitted that she had been asked questions by the interview board which would have been more easily answered by a person who had experience of acting as a year head than a person who did not have that experience. The Appellant did not have that experience and contended that such experience had been denied to her in previous years. She clarified in evidence to the court that the disadvantage suffered by her as a result of the asking of the impugned questions was a disadvantage in comparison to two female candidates with year head experience and the male candidates with such experience.

She clarified to the Court that no matter was before the Court as regards the methodologies employed prior to February 2016 to allocate year head functions to persons holding Special Duties posts of responsibility. Finally, the Appellant clarified to the Court that no complaint was before the Court as regards the conduct of the interview process which was held following the annulment of the interview process held in February 2017.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “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.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In the within appeal, the Appellant has set out a range of events which she contends amount to discrimination on grounds of her gender. She has accepted in evidence that any disadvantage suffered by her as a result of the asking of questions put to her relating to scenarios involving child protection, conflict resolution and day-to-day communications was a disadvantage versus the female and male candidates with year head experience.

The impugned interview process involved the interviewing of ten candidates, seven of whom were women and three of whom were men. Of the seven female candidates two had experience as a year head while all three of the male candidates had such experience.

The Respondent has asserted that the impugned questions were intended to establish the candidates’ competence to deal with areas which would be encountered by an assistant Principal year head in the performance of their duties. The Respondent asserted that it was the legitimate expectation of the interview board that a candidate should be able to demonstrate such a competence and this capacity to demonstrate competence was a requirement of any teacher competing for appointment as an Assistant Principal to be assigned the duties of year head.

The Court accepts that it is reasonable that an employer conducting a competition to appoint a candidate to the position of Assistant Principal to act as a year head would ask questions at interview designed to establish a candidate’s competence to deal with scenarios which could be encountered in the role. The Court notes that no matter is before the Court as regards the methodologies employed by the Respondent before February 2016 to assign persons to the duties of year head. The Court notes also that the Appellant contends that the impugned questions disadvantaged her as against male and female candidates.

The Appellant has not established facts from which it could be inferred that the questions asked by the Respondent at interview discriminated against her on grounds of her gender.

The Court must therefore conclude that the Appellant has failed to discharge the burden of proof which rests upon her to establish a prima facie case of discrimination contrary to the Act.

Determination

The Court has been given no basis to infer that any decision of the Interview Board was affected, influenced or otherwise tainted by discrimination on the gender ground. In those circumstances the Court determines that the Appellant has not succeeded in making out a complaint of discrimination within the meaning of the Act.

The decision of the Adjudication Officer, for the reasons stated above, is affirmed and the appeal fails.

Signed on behalf of the Labour Court



Kevin Foley
10 January 2018______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.