Complainant

Respondent

Parties

Leonard  Skelly

Dublin Dun Laoghaire Education And Training Board

Representatives

Niamh Ní Cheallaigh

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023304-001

16/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007

CA-00023304-002

16/11/2018

The Complainant is a teacher who was employed by the Respondent from 1st September 2017 until 31st August 2018.

CA-00023304-001

The Complainant claims he was discriminated against due to his gender, and age in his application for a job, and victimised as a result of making a protected disclosure about breaches of copyright legislation.

The Complainant is a very experienced teacher. He was employed as a teacher of Spanish and Economics in the academic year 2017/2018 on a fixed-term contract from 1st September 2017 until 31 August 2018 and was on probation. When teaching in the school he spoke up about the use of copyright frauded material which was sub-standard and not adequately monitored to management while teaching in the school. He said the students were struggling at a higher level and their attainment and success was affected. He was targeted because he would not write it up.

Students in the school do not have text books and rely solely on school created digital content. The Complainant was told to copy units of a book on to One Note which was the school system. When he reviewed it, he saw there was lots of material which was copyright including direct screenshots and sound files. The Complainant and other teachers were requested to upload the materials. The materials had been distributed to students from first to third year stamped with the Colaiste Pobail Setanta brand giving the impression that everything had been created in house. The Complainant refused as he knew this was copyright fraud, but was told to do so by the Department Head. The Complainant did not agree with the school policy and made this known to the Vice Principal in November 2017. He was told by other members of staff he would not have a job next year if he questioned it. Everyone was afraid of management.

The Complainant met the Principal on 14th November 2017 and showed him the breaches of copyright on the master digital books created by staff and distributed as school e-books. He informed the Principal there was breach of copyright and law with a possible fine of €10,000 and three months in prison. He was never told this would be required when he was interviewed. The Principal requested a further meeting which took place on 22nd November 2017. The Complainant felt pressurised by staff and asked his union representative to attend.

The Complainant was not being listened to and arranged to meet the Irish Educational Publishers Association and Irish Copyright Licensing Agency on 27th November 2017. The Complainant raised the issue in the Whole School Evaluation. A Whole School Evaluation of the school was carried out by the Department of Education and Skills which recommended “the principal should review the schools digital strategy and put in place a robust system for review of school created digital content..”. “Students in junior cycle do not have text books and are reliant solely on school created digital content which varies in quantity and has not been monitored adequately by school management”.

As a result of the complaint, the school entered into an agreement with the ICLA regarding their use of content and after the end of the year that the usual published e-books would be used. The Complainant lodged a grievance at stage 3 of the procedure on 25th July 2018 due to unprofessional treatment by management in the Respondent which was not upheld. The Complainant was called for interview for the position of Business and Economics Teacher in the school, but was not appointed to the position. The Complainant passed his probation. The Complainant’s probation report by the Principal said he worked extremely hard and made a very positive contribution to the college. The Complainant is highly qualified with a 2.1 in teaching practice, Masters in Economic Science, and Post graduate Diploma in education/teaching.

The Complainant was penalised in accordance with s5.3 of the Protected Disclosures Act 2014 as he was precluded from recruitment into the Business studies Teaching post in the school. He applied on the ETB portal but was precluded from the interview for the business role. There were two roles available, one business and economics role and a second business studies role. He was not called for interview for the business studies role. The following year there was a lack of teachers in business studies. If he was appointed to a role in the school for a second contract in a row, he would have obtained a contract of indefinite duration. He applied for other roles on the ETB portal but never received any interviews.

As a result of his disclosure, he was accused of not doing his job and blackmailing the school. He asked how as a teacher working full-time could also write up text books.  The students were having problems with the text as it was not in a co-ordinated form. It was not adequate for the junior certificate. The school held itself out to have a high-level digital strategy. He was older in his thirties with more life experience and was prepared to stand up and say no. He was much more qualified than the candidate selected for the role. Older male teachers left the college and younger female teachers were recruited for Business jobs. He was discriminated against due to his gender and age.

CA-00023304-002

The Complainant made complaints to management on directions being given by management to breach copyright legislation. The Complainant was penalised in accordance with s5.3 of the Protected Disclosures Act 2014 as he was precluded from recruitment into the Business studies post. He applied on the ETB portal but was precluded from the interview for the business role. There were two roles available, one business and economics role and a second business studies role. He was not called for interview for the business studies role. The following year there was a lack of teachers in business studies. If he was appointed to a role in the school for a second contract in a row, he would have obtained a contract of indefinite duration. He applied for other roles on the ETB portal but never received any interviews.

He was silenced as a result of his actions and discredited, even though the Whole School Evaluation by the Department of Education upheld his concerns. As a result of not being retained in the school he had financial loss of €16,000 for one year, loss of pension, and lost progression on his pay grade and increments.

CA-00023304-001

The Respondent’s submission is made without prejudice to the Complainant’s obligation to discharge the burden of proof that there is a prima facie case to answer under S85A of the Employment Equality Acts 1998-2015.

The Respondent is established under the Education and Training Boards Act 2013 to provide primary, secondary, further education and training and youth reach programmes and services. It is an equal opportunity employer. The Complainant was employed on a fixed-term contract for the academic year 2017/2018 as a teacher. In line with Department of Education Circular 0024/2015 he was informed that his contract would end on 31 August 2018 and be readvertised for 2018/2019 on 1 May 2018.

The Complainant applied for the Business and Economics teaching role which was competency based. Two candidates were called to interview one male and one female, and both deemed suitable for appointment. The Complainant attended an interview with three panellists including the Principal of the college. He was unsuccessful with his application based on the interview process. The Complainant obtained 375 marks and the successful candidate 390, based on 5 competencies professional knowledge, professional practice, professional values and relationships, contribution to the school and community in the job specification. The competency included a requirement to “apply their knowledge and experience”.

The successful candidate had a 1:1 in her primary degree, higher diploma in education and A grade in teaching practice, and experience working in financial services. In professional practice the description of the successful candidate was very good, excellent use of Assessment for Learning techniques and a variety of examples from previous positions, whereas the Complainant received good as a descriptor. The Complainant received a rating of 3 and the other candidate received a 4.

The Respondent says at the time the Business studies role was advertised the Complainant was not recognised as a teacher on the Teaching Council website and could not be interviewed for the role.

The Respondent relies on Southern Health Board v Mitchell (2001 ELR 201) which established a three part test to establish discrimination, firstly the Complainant must prove on the balance of probabilities the primary facts upon which he seeks to rely in raising a presumption of unlawful discrimination. Secondly the facts if proven must appear to the Court to be of sufficient significance to raise the presumption contended for. Thirdly if the burden shifts to the Company it must prove on the balance of probabilities that the impugned decisions was in no sense influenced by one of the proscribed grounds. The Respondent says the Complainant has provided no evidence of direct discrimination that he has been treated less favourably or any causal link between any alleged discriminatory treatment and his gender or age. The job was awarded following an objective review of the candidates for the role.

Indirect discrimination occurs where an apparently neutral provision puts persons at a disadvantage compared with other employees based on one of the nine grounds covered by the Acts. The Respondent claims the Complainant has failed to discharge the burden of proof.

The Complainant was in the 36-40 year old bracket, which is the same age bracket of the successful candidate and there was one year between them. The panel were not aware of the ages of the applicants as this data is only collected following appointment to the role.

The successful candidate was female. No evidence has been provided to establish a link between the genders and why one was offered the job over the other. The Respondent relies on Margetts v Graham Anthony & Company Ltd EDA038.

CA-00023304-002

The Complainant alleges that he made a protected disclosure and was penalised for this when he failed to be appointed to the post of Business Teacher. This allegation was first notified on 5 September 2018. The Respondent does not dispute the Complainant made a protected disclosure, but rejects he was penalised for doing so. His grievance of unprofessional treatment by the Principal and other members of management was rejected. His complaint of discrimination is rejected.

The Respondent relies on the ruling in O’ Neill v Toni and Guy Blackrock Ltd HSD095 that where there is more than one causal factor in the chain of events the commission of the protected act must be an operative cause in the sense that “but for” the complainant having committed the protected act he would not have suffered the detriment. The Complainant’s failure to be appointed to the post of Business and Economics teacher was wholly unrelated to any protected disclosure.

The Complainant complains he has been discriminated against by the Respondent in terms of S6 (2) (a) and (f) of the Employment Equality Acts 1998-2015 in his failure to be appointed to two positions firstly Business & Economics teacher and secondly Business Studies Teacher in the college for the academic year 2018/2019 due to his gender and age.

In reaching my decision, I have taken into account the written and oral submissions and evidence given in the course of the hearing.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “gender ground” is where an individual is a man and another individual is a woman.  The “age ground” is where the individuals are of different ages.

S34(4) of the Employment Equality Acts 1998-2016 provides

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily of compulsorily) of employees or any class or description of employees if-

(i)                  It is objectively and reasonably justified by a legitimate aim, and

(ii)                the means of achieving that aim are appropriate and necessary.”

The burden of proof is set out in Section 85A (1) of the 1998-2016 Acts which provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant gave evidence that Business Studies Teachers in the school are younger and female. Older males with life experience have left the college. He has excellent references. The Complainant says he was not successful in the interview for Business and Economics Teacher for the school. He was also precluded from interviewing for the role of Business Studies Teacher as he was not called for interview.

The Respondent confirmed both the Complainant and successful appointee to the role of Business and Economics teacher were qualified for the position. A member of the interview panel gave evidence that the appointee provided a greater range of examples and received a higher score in assessment for learning techniques applied in the interview which was the reason for her selection. Evidence was provided by the Respondent that the successful appointee to the role of Business and Economics Teacher is one year younger than the Complainant.  

The difference in age between the Complainant and the appointee to the position of Business and Economics Teacher is not significant and does not raise an inference of age discrimination. I am cognisant of the decision in Southern Health Board v Mitchell (2001 ELR 201), the Complainant has not provided prima facie evidence of discrimination on the age or gender grounds regarding his complaints regarding the appointment to the role of Business and Economics Teacher and non-recruitment to the role of Business Studies Teacher. I find a prima facie case of discrimination is not set out and the complaint fails.

CA-00023304-002

S5 (2) of the Protected Disclosures Act 2014 provides information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker's employment.

S5 (3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed….”

The Respondent accepts that Mr. Skelly made a protected disclosure within the meaning of S5 of the Protected Disclosures Act 2014 regarding alleged breach of copyright in preparation of texts for students. He met with the Principal and other members of management around 14th November 2017 and outlined his concern about direct copying from texts and potential criminal offences. He also said teachers were being bullied into writing e-books which was not part of their contract.

Mr. Skelly says he was pressurised to produce this material and he refused to use the copyright frauded material. This led to difficulties with other teachers. This issue was raised in a meeting between the Principal and Mr. Skelly in November 2017 and he was told he was aggressive to another teacher. He disputed this, said he was upset about the pressure to produce the materials which was a breach of copyright and was never told this was required. The school on the other hand say Mr. Skelly refused to produce materials requested for students. Mr. Skelly says he was not being listened to and subsequently brought the issue to the attention of the Irish Copyright Licensing Agency and the Irish Educational Publishers Association on 27th November 2017.  A whole school evaluation by the Department of Education and Skills also raised concerns about the school’s digital strategy and said the principal should put in place a robust system for review of school created digital content which had not been adequately monitored.

A settlement was entered into by the school with the ICLA in May 2018 whereby content would be used until the end of the year and thereafter e-books would be used in the school. Mr. Skelly lodged a grievance regarding unprofessional treatment by management in July 2018 which was not upheld. Mr. Skelly was not on any performance review, and comments by the principal about his contribution were flattering.

The Labour Court in Aidan & H McGrath Partnership v Monaghan PDD 2/2016 [2017] ELR 8 set out the test for determining if a worker has been penalised for making a protected disclosure, which requires firstly a finding that a protected disclosure has been made and secondly a determination that penalisation has occurred.

I find that Mr. Skelly made a protected disclosure within S5 (3) (a) of the Protected Disclosures Act 2014 as he had a reasonable belief (even if he was wrong, but reasonably mistaken) that a criminal offence of breach of copyright has been, was being or was likely to be committed in the school.

Penalisation is defined in S3 of the Protected Disclosures Act 2014 as any act or omission that affects a worker to the worker’s detriment and includes lay-off or dismissal, disadvantage, unfair treatment and loss. Penalisation also includes not being recruited or selected for interview. The Labour Court in its decision in O’ Neill v Toni and Guy Blackrock HSD 5/2009 [2010] ELR1 requires the Complainant to show the act or omission complained of must have been incurred “but for” having made a protected disclosure, and the protected disclosure must be the operative cause of the penalisation.

As Mr. Skelly was employed on a one-year fixed term contract as a Spanish and Economics teacher expiring on 31st August 2018. The school was required to re-advertise this position pursuant to Circular 0024/2015. Mr. Skelly applied for the roles of Spanish, Business and Economics teacher on the Respondents website in 2018 for the academic year 2018/2019. I have already considered Mr. Skelly’s complaint of discrimination in relation to the appointment of a Business and Economics Teacher above and found no prima facie case of discrimination.

Evidence was given by the Respondent that Mr. Skelly was qualified for the role of Business and Economics teacher although ultimately unsuccessful for the position. He received a good probation review from the Principal and is highly qualified. From the evidence of the panel member, he was pipped for the post of Business and Economics Teacher by a small difference in the marks. Mr. Skelly has given evidence that not withstanding applications for numerous schools on the Respondents website, he has not been invited to any other interviews following his protected disclosure.

The Respondent has not provided any explanation why Mr. Skelly was not selected for interview for a post in the academic year 2018/2019 as a Business Studies Teacher in the school. Minutes provided for the parents association from September 2018 show there was a shortage of Business teachers in the school.

I can only conclude that Mr. Skelly was penalised in not being interviewed for a role of Business Studies Teacher for the academic year 2018/2019 for which he was well qualified. A second fixed-term contract from the school would have provided Mr. Skelly with a contract of indefinite duration, consequent security and as a result he has suffered detriment and financial loss.

 The complaint of penalisation is well founded. I direct the Respondent to ensure that all future applications for teaching positions by the Complainant are given full consideration. I award compensation of €43,425.00 to be paid by the Respondent to the Complainant.

The complaint of discrimination fails.

The complaint of penalisation is well founded. I direct the Respondent to ensure that all future applications for teaching positions by the Complainant are given full consideration. I award compensation of €43,425.00 to be paid by the Respondent to the Complainant.

Discrimination, prima facie, penalisation, test, omission