Complainant

Respondent

Anonymised Parties

Teacher

Board of Management

Representatives

 AM Giblin BL instructed by Jason O Sullivan J.O. S Solicitors

Paul McDonald AJP McDonald Solicitors

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-00034890-001

27/02/2020

This is a case concerned with a complaint alleging less favourable treatment on grounds of gender. The case involves a teacher in a primary school who was initially assigned to teach sixth class students but was subsequently replaced by a male teacher and the Complainant was reassigned to resource teaching. The issue arose in May/June 2019 as a consequence of which a preliminary issue regarding the time limit for bringing the complaint was raised by the Respondent side. It was necessary to hear the case in full in order to determine the issue of time limits including the operable timeline for the alleged discrimination.

Note: the terms Resource Teaching and Special Education were used interchangeably by the parties.

The Complainant commenced employment with the Respondent in 1999. She has been a mainstream teacher for most of the years since with the exception of a five-year period when she carried out resource teaching due to her personal circumstances. In the school years 2017-2018 and 2018-2019 the Complainant taught sixth class. She was assigned to teach sixth class again on the 13th of May for the following school year 19/20. It is submitted that the norm in the school is that the sixth classes are taught by one male teacher and one female teacher. Following her assignment as a teacher for the sixth class a parent (who is also a teacher at the school) insisted that her daughter be taught by a male teacher. She was also informed that there were problems between her as the Complainant and the Board of Management with which she agrees. However, in relation to the assignment of a male teacher to teach the other teacher’s child the Complainant made a number of suggestions as to how this could be accommodated short of removing her from teaching the sixth-class students. As far as she is concerned, and as she stated in evidence, the decision to reassign her to resource teaching was taken partly because of the other issues she had in the school but mainly on gender grounds. The Complainant made an appeal to the Principal to change this decision and also sent a formal appeal in writing to the Board of Management on the 5th of July 2019. On the 2nd of September 2019 the Complainant returned to work and again requested to be returned to sixth class making this appeal directly to the Principal in his office. This request was again refused, and the Complainant commenced sick leave on 3rd September 2019 returning to work in November 2019.

It was submitted that the Complainant had suffered less favourable treatment and a deterioration in her working conditions by comparison with the male teacher who was assigned to teach sixth class. There was a severe impact on the Complainant’s health as a result of the decision to reassign her. She gave evidence that she was forced to work in close proximity with the named teacher who had sought to have her child taught by a male teacher and another member of staff with whom she had previous difficulties. She presented a drawing and a photograph to support her testimony around the impact of the physical changes in terms of the requirement to work closely with others who were also resource teaching and with whom she had previous serious difficulties. She also had to prepare for resource teaching having already prepared for teaching sixth class based on her understanding that she would be teaching that class. There was an impact on her supervision as a consequence and it was contended that not being in a position to do mainstream teaching at sixth class level could adversely affect her promotional prospects and her CV. In November 2019 the Complainant was directed to return to work the following Monday or face serious consequences.

Discrimination and Time Limit

Section 6 and 6(2) were cited stating “The Respondent made a decision that a male teacher was required to teach sixth class in the 2019/2020 school year”.

Section 8 was cited specifically in reference to conditions of employment as defined in section 8(6) of the Act. It was submitted that the assignment of teaching roles within a school forms part of the working conditions of the employees of that school.

The Complainant contends that she was unlawfully discriminated against on grounds of her gender when the decision was made to reassign her from mainstream teaching to resource teaching in 2019. In response on the issue of the time limit raised by the Respondent the Complainant representative submitted that the time limit should not be decided by reference to the decision made on the 17th of June 2019 to reassign the Complainant, but rather that this was an issue of ongoing discrimination for each day on which the discrimination occurred and that discrimination was ongoing on the 27th of February 2020 when the complaint was lodged to the Workplace Relations Commission.

Comparator

The comparator for the purposes of section 6(2) is the named male teacher who was assigned to teach sixth class instead of the Complainant and when he was assigned to that role instead of the Complainant because he is a man. A seniority list was presented which indicated that the comparator had far less experience than the Complainant.

Reference was made to section 25 which allows for a post to be confined to a man or a woman where gender is a bona fide occupational qualification. The restrictive interpretation of this exclusion by the Equality Tribunal and the courts was cited by reference to M v A Language School (DEC-E2004-028) and the Department of Justice, Equality and Law Reform v The Civil, Public and Services Union (EDA13-2007) with further reference to the test adopted for objective justification in the case of Barton v Investec PCH Crosthwaite Securities Ltd. It was submitted there was no objective justification for the policy of having one male and one female sixth class teacher in the Respondent school. Further, there was categorically no objective justification for having two male sixth class teachers. There was no other explanation given to the Complainant regarding the decision to reassign her role from sixth class to resource teaching other than the desire to have a male teacher in sixth class. Further, it was submitted that where it is stated in the Respondent submission that representations were made to the Principal by parents other than the named teacher not to have their child taught by the Complainant, this information was never provided to the Complainant at any stage prior to the submission for the hearing in the WRC. Further submissions were made on the burden of proof. In response to the submission by the Respondent that serious consideration was given to assigning the then Deputy Principal who is female to sixth class instead of the Complainant, it was argued that this was never a realistic proposition given the various commitments that the Deputy Principal had at that time.

Additional witness evidence

The Complainant explained that on the 13th of May teachers were informed by way of what is known as the Aladdin system that there would be no change in the classes from the previous year. This meant that she would be teaching sixth class (which was her first preference). The Aladdin system is an internal system to which those outside the school do not have access. On the 10th of June the Principal (in his office) stated that the named teacher had told the Principal that she would remove her child from the School and that she wanted a male teacher to teach her daughter. She explained that she gave four options which could have avoided her not being assigned to teach sixth class. The Principal had told her directly that she had ongoing issues with the Board which she agreed she does have and did have over the years. Other parties external to the School did not have access to the information and she was never made aware that other parents had objected to her teaching their children. She emailed the Principal seeking a reason why she was reassigned and received no response. She wrote to the Board of Management but was not told of any reason why she was reassigned. Asked about the impact on her working conditions of being reallocated to a resource teacher role she said that she was heartbroken and referenced her CV and career progression. She named three teachers and gave their room numbers where they were working in close proximity with her as a consequence of being assigned as a resource teacher. Three teachers that she had difficulty with in the past. This had a profound impact on her facing those people and also being removed to an area where she was cut off from other teachers in the School. Her job satisfaction was affected. Asked if she had ever seen anyone before reassigned once they were assigned to a particular class or after they were assigned to a particular class, she said no she had never seen anything like this happen before.

 In response to the Respondent representative the Complainant agreed that she had issues with teachers in 2013 and named a teacher in 2013 and another teacher in 2016 and that issues were processed in one of the cases through the grievance procedure. She agreed that the location and map which she had provided was the current position and not the position in 2019 but said that those changes had taken place afterwards where she was removed to an area where she was isolated from other teachers.

Under cross examination the Complainant agreed that on the recommendation of Medmark, accommodation arrangements were put in place regarding supervision to avoid the difficulties and concerns she had about dealing with others. Asked did she agree that the named comparator had received his third choice when he was assigned to sixth class and she also had received her third choice in being allocated to resource

teaching having refused her second choice the witness replied that she was not offered her second choice after 17 June. If she had been offered that as the alternative to resource teaching, then she would gladly have taken it.

As far as she was concerned the reassignment was partly due to her ongoing difficulties and referenced in her letter of the 5th of July to the Board of Management as a vindictive motive, but it was largely to do with gender.

It is the duty of a primary school to allocate teachers to particular classes for each year. The Principal must weigh the options carefully bearing in mind the wishes of the teacher, the needs of the school or a particular class and other information particular to a school situation which may influence decisions. For the academic year 2019/2020 the then Principal allocated the Complainant to a special education teacher role. The Respondent denies that the Complainant was discriminated against on grounds of gender or any other ground. The then Principal was acting in good faith when he allocated the Complainant to the special education teacher role. Outlining the history of the previous assignments of the Complainant it was submitted that in 2013/2014 her first preference was for sixth class, and she was given her second preference of resource teaching. In 2014/15 and for the succeeding two school years her first preference was for resource teacher, and she was given that. For the two years between 2017 and 2019 her first preference was for sixth class, and she was given that.

For the 2019/20 school year her first preference was for sixth class. Originally, she was given her first choice, but the Principal then decided to put her into the SEN team which was her third preference because of representations made to him by parents of children going into sixth class. She rejected an offer of her second choice. It is denied that another teacher sought to have her child taught by a male teacher. That teacher did advise the Principal out of courtesy that while she was looking for no favours if her daughter was going to be taught by the Complainant in sixth class she would move her to a different school.

Notwithstanding the representations made by the other teacher, the then Principal originally decided he was not going to make any changes to class allocations and he notified teachers of this decision via the Aladdin app on 13 May 2019. Subsequent to that decision the then Principal was approached by a number of parents of pupils in fifth class who advised him that their children were expressing anxiety at the prospect of being put into the Complainant’s class for the 2019/20 academic year. It was after these representations that the Principal decided that it would be prudent to reconsider his class allocations and to change the Complainant’s class to her second choice being second class. When she refused this option, she was allocated to resource teaching.

After deciding that the Complainant would not be assigned to sixth class, he initially considered the then Deputy Principal (a female) to replace her and he discussed the matter with the Deputy Principal. He subsequently felt however the Deputy Principal would be better utilised remaining in special education teaching. He then decided to appoint a male teacher (the comparator) to sixth class for the 2019/2020 academic year, that being the male teacher’s third preference.

Preliminary issue

Section 77(5) of the Employment Equality Act 1998 refers to the initial timeline of six months from the date of occurrence of discrimination or victimisation as the time limit for referring a complaint to the WRC. The Complainant alleges that the decision to replace her with a male teacher amounts to discrimination on the grounds of gender. She confirms that it was on the 17th of June 2017 that she was informed that she was assigned to resource teaching and therefore the alleged act of discrimination is said to have occurred on that date. However, the Complainant did not refer her complaint to the WRC until 27 February 2020 more than eight months after the alleged act of discrimination and the Respondent sought to have the proceedings dismissed as out of time.

Legal submissions

There were legal submissions on the burden of proof. It is contended that in the present case the Complainant has merely asserted that the fact that she did not get her first choice for class allocation for the 2019/20 academic year is evidence that she was discriminated against on grounds of gender. She has not produced any evidence to support this assertion and the mere fact that she falls within one of the discriminatory grounds is not sufficient. She has failed to establish a prima facie case and her claim should be dismissed.

If the adjudicator finds that the Complainant has established a prima facie case of discrimination the Respondent is satisfied that it is in a position to rebut such inference referring to the requirement to provide corroboration of evidence. It is submitted that it is not possible that every teacher will always get their first choice and it is not prudent that allocations be made merely on the grounds of teacher choice. In five of the six years prior to 2019/20 academic year the Complainant was given her first choice of class allocation. When the then Principal decided to move the Complainant from sixth class for that academic year, he first considered the Deputy Principal, a female, to teach sixth class for that year, but following a discussion with her he considered she would be better utilised remaining in resource teaching. The Deputy Principals third choice was sixth class. He then appointed a male teacher whose third choice was also to teach sixth class.

On the time limits issue the Respondent representative maintained that the date of the decision in June 2019 is the correct reference point for the complaint of alleged discrimination. The date of 2nd September when the Complainant returned to school and asked for the earlier decision to be changed was not the date of the Decision. Asked by the adjudicator if he would accept that the date of the reply to the Complainants

appeal to the Board of Management in September was an applicable date for the first period of six months, the Respondent Representative stated he did not accept that could be the case, that the 17th of June 2019 was the correct date to be used. Asked if the Respondent was saying that should a prima facie case be established there were objective grounds for the decision that was made by the Respondent, the representative stated no, that there were no objective grounds being submitted. The allegation was denied, and the decision was not being justified was not being justified on objective grounds within the meaning of the Employment Equality Act.

 In response to the undersigned and in consultation with his client the Respondent representative stated that there were no communications, no records of meetings with parents or with another teacher or minutes of Board meetings at which the assignment of the Complainant was discussed. Discussions between the Principal and others were of the form of informal chats regarding the day-to-day management of the School.

Summary of Respondent Witness Evidence

Witness A for the Respondent is a teacher in the school. Asked if she had past issues with the Complainant she replied that she had no issues with the Complainant-the Complainant did have issues with her. She gave evidence that she had approached the Principal in February/March 2019 informing him that if her child was to be taught by the Complainant in sixth class she would move her child to another named school, a Gaelscoil. She said that she told the Principal that it was totally up to him, but she wanted him to know her position. She used the term anxiety as her reason for not wanting her child in the Complainants class. There were previous issues between her and the Complainant and her child was aware of that situation. Under questioning she denied that she had ever asked or suggested that she wanted her child taught by a male teacher, that is not something she would ever do. In response to the Complainant representative she denied that she had informed other parents of the decision to assign the Complainant to sixth class. Asked if she had seen changes in class allocation previously after the list was published, the witness said yes, that this had happened in her own case, and described situations where a teacher was out sick, that anything could happen over the summer to require a change. She would always have agreed if requested to change, as it was always for a good reason.

Witness B for the Respondent was the former Acting Principal since retired. He gave evidence of his meeting with witness A in February 2019. He said that witness spoke about changing her daughter to another school rather than have her in the Complainants class in sixth year. She did not ask him to do anything about the position and did not ask that her daughter be taught by a male teacher. She referred to anxiety. His response was to say that he thought the witness’s daughter would do very well in the Gaelscoil. He recalls that he may have spoken at some point to the Principal in that school mentioning that the student might be going to that school and that he thought she would do very well there.

Referring to his first discussion with the Complainant, the witness said that this occurred on 5 May 2019. He spoke to the Complainant about offering her the second choice-second class. She strongly rejected this suggestion insisting that she wanted to teach sixth class again which was her first choice. Following this discussion, he decided to stick with the same list of teachers and classes as the year before and this was advised to teachers on a confidential basis on May 9th.

Asked if it was school policy to have one male and one female teacher for the two sixth year classes, he replied no. All things being equal that could happen, but gender was not the deciding factor nor was it a school policy.

Asked if seniority was a factor in deciding on class allocation, he replied no, it has nothing to do with it. The only place that seniority is a factor is if redeployment to another school becomes necessary. Seniority used to be a factor in promotions, but this is no longer the case.

In response to a question regarding the impact of not being allocated to sixth class on a possible promotion as contended by the Complainant, the witness stated that special education would not be seen as a demotion and to have worked in special education would be essential for promotion. Sixteen people had expressed some preference for special education, five had expressed some preference for sixth class.

After the decision on class allocation was posted on Aladdin on 13th May, he was approached by another teacher and also three parents who expressed concern about their child being placed in the Complainants class. There was a mention of an incident with a child and a complaint to Tusla, but he investigated that matter and decided it was not serious and not a matter for Tusla. The parents had each referred to concerns about their child’s anxiety issues.

He then decided to approach the Deputy Principal about taking on the sixth class in place of the Complainant. She undertook to think about it overnight but came back to him and said she would prefer to maintain her pastoral role. After that he decided to allocate the class to the named male teacher who had sixth class as his third option. He explained that he decided to assign the Complainant to her third choice, special education, as there was less likely to be a cause for anxiety (among students).

On 17 June he informed the Complainant of his decision. He did not mention witness A and he did not say that she had asked for a male teacher for the class. He did not inform the Complainant of the representations made by other teachers and parents as he considered those to be data protected. One parent had come to him visibly upset. Asked what reason he had given to the Complainant for his decision, he said he gave her no reason. He had told her his decision was final.

In reference to the letter from the Complainant to the Board of Management in July where the Complainant referred to his informing her that the reason to allocate another teacher to her first choice of sixth year was based on gender, the witness confirmed that he was present for the discussion at the Board. Asked why he or they had not replied to the very specific allegation that the decision to allocate another teacher was based on gender, he replied that that the letter also contained other alleged reasons for the decision.

Witness C

The third witness for the Respondent was the Deputy Principal in 2019, now Acting Principal. She gave evidence of being approached by the then Principal in May 2019 about sixth class. He spoke about children with anxiety issues and asked her if she would consider taking over that class instead of SEN to which she had been allocated. The witness explained that hers is the pastoral role at the school providing support to children with anxiety. She thinks the Complainants name was mentioned by the Principal. Her reply was that she would do whatever was needed but she would like to think about it overnight. When she spoke to the Principal again she expressed a preference for staying with SEN and her pastoral care role. If she was in sixth class she would be unable to take time out to support children with anxiety issues if needed. On the work in SEN compared to a class year she stated that the SEN work is considered as onerous as class teaching-there is more paperwork and more planning required for SEN.

By way of a preliminary observation, there is no doubt that the Complainant, when reading the Respondent submission and in the evidence of the then Principal, learned for the first time of reasons relied upon by the Respondent to justify the decision not to assign her to sixth class contrary to the decision indicated to her and all teachers on May 13th through the Aladdin system. Even her own Counsel was taken aback at the level and form of detail provided by the then Principal in sworn evidence at the hearing. These were statements made as matters of fact concerning approaches and accusations being made by a teacher and other parents at the school but for which no record was available. According to the Principals own evidence while no record was made of those discussions or the investigation into the so called ‘Tusla’ issue, all of the anonymous unrecorded approaches and statements received the status of being data protected. Those same anonymous protected sources were apparently given a further status. The theme of anxiety repeatedly referenced in the approaches to the Principal  by witness A and others from February to May were legitimised to the extent that, from his evidence, they influenced the Principal not only to remove the Complainant from teaching sixth class, but also to skip her second choice and to assign her to SEN. Emails In June from the Complainant to the Principal seeking clarity on his decision and also suggesting she should be assigned to a 5th class were ignored by the Principal. Notwithstanding the evidently difficult history between the Complainant and others including the Board of Management, if this were a grievance about the manner in which she was assigned to special education and the communications or lack of them from her manager and the employer, the Complainant would certainly have a serious point to make about the related deficits.

The requirement to make a preliminary decision regarding jurisdiction under the Employment Equality Act remains aside and apart from the forgoing observations.

The first aspect is the date of the alleged discrimination and here two arguments were presented, and both must be considered to decide the time limit issue. The first argument is that of the Respondent where they say that the alleged act of discrimination occurred on June 17, 2019 and the six-month time limit expired on December 16th of that year and no extension is justified beyond that date. This complaint was submitted on February 27th, 2020, outside of the more usual time limit of six months inside which a complaint must be made and as provided for in Section 77(5) of the EEA.

The corresponding argument from the Complainant seems to accept that the date of the alleged first act of Discrimination was June 17th but that each day while that act was enforced through the assignment of the male teacher to the class represented a separate act or occurrence of discrimination each day during that school year. Under this argument and therefore the complaint submitted in February 2020 was not out of time. On the basis of this argument a request for an extension of the six-month time limit does not arise. Under this approach the Complainant is accepting that the decision of the Board in September and the return to work date in early September when the Complainant again sought a change of mind on the part of the Principal are not relevant in themselves as they are just two dates in the continuum of the days during the school year when the alleged discrimination occurred. And the date of 17 June while representing the first date of an act of discrimination is not a stand-alone date for the purposes of the time limit in respect of the alleged discriminatory acts or occurrences.

To consider the claim made on behalf of the Complainant that each day the male teacher was assigned to sixth class represented an act of discrimination it is useful to examine the definition of discrimination contained in Section 6 of the legislation.

(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 —

Once one of the discriminatory grounds is present, the key phrase in the subsection is that of lessfavourably. It follows from this phrase within the meaning of the term discrimination or discriminatory treatment that the aggrieved person must be able to demonstrate that the act of alleged discrimination, in this case that her assignment to resource or special education and his assignment to teach sixth class, resulted in less favourable treatment than the comparable employee, the named male teacher.

In examining the claim that there was ongoing discrimination throughout the relevant school year, the question arises as to whether there was in fact less favourable treatment of the Complainant based on her own depiction of effects of the offending decision of the Principal having regard to the terms of Section 6 of the Act.

 Comparing her situation to that of the male comparator looks as follows:

1.      She was assigned to her third choice of class as was the comparator.

2.      There were no changes in her conditions of employment and none for the comparator.

Based on these facts, the Complainant did not experience any material detriment of the kind described in Section 8-(1) of the Act:

Discrimination by employers etc.

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.

The discrimination in this case appears to rely on the interpretation of working conditions of which the adverse effects cited in this case were: potential adverse effects on her promotional prospects; having to work in close proximity to teachers with whom she did not enjoy a good working relationship; having to prepare for special education when she had prepared for teaching sixth class on the basis of the notice on Aladdin on May 13th.

The first of these is not only hypothetical as there was no promotional competition at the time, it is contradicted by the fact that by 2019 the Complainant had nineteen years teaching experience in the school and all but five of these were in mainstream class teaching. She had just completed two straight years of teaching sixth class. Thus, her non-assignment to a mainstream class in 2019/20 cannot be legitimately claimed to have adversely affected her promotional prospects, even hypothetically.

The second of the claimed detriments i.e. working in close proximity to and sharing supervision with named other teachers was not an act of discrimination against the Complainant. The difficulty arose not from providing her with less favourable treatment to that of her comparator, as alleged, but her own poor relations with colleagues which by common accord predated her assignment to special education in 2019/2020. And as the Complainant had placed special education as her third choice, claiming that the same outcome represented a detriment imposed on her is not sustainable. Even if the definition of a working condition were stretched to incorporate such an issue as constituting a working definition for the purposes of the legislation which is at best a dubious line of argument, it is not sufficiently robust to find that it represented less favourable treatment resulting directly from gender discrimination.

The third point made regarding additional work as a consequence of the change after 13 May is valid, but not on the basis of less favourable treatment as the male teacher would have thought and presumably prepared for the next school year on the basis that he was teaching another class and instead he also had to prepare later than expected, to teach a different class, sixth class in his case.

Finally, and as it was referenced on behalf of the Complainant, that she was unwell after 3rd September may well have been caused by the impact of the Principals decision, his refusal to alter it and the lack of engagement with her communications may also have been factors. However, that illness is not a factor for consideration as less favourable treatment compared to the comparator, but rather an impact to be taken into account were discrimination to be found.

In summary, there is no evidence of less favourable treatment of the Complainant compared to a named male teacher resulting from the decision of the Principal to assign a male teacher to teach the class which the Complainant had as her first choice for the school year 2019-2020. Consequently, there is no basis for a finding of discrimination in favour of the Complainant.

As there is no prima facie case of less favourable treatment within the meaning of the term discrimination, on an ongoing basis, or at all, the argument that the time limit for making a complaint extended from June 17th, 2019, to the end of the following school year based on ongoing acts or occurrences of discrimination ending in the summer of 2020, cannot succeed and must be rejected.

On the basis of the forgoing finding it is not necessary to explore further the credibility of the respective accounts of what occurred between the Principal and the Complainant and others which influenced his decision not to assign the Complainant to sixth class in the school year 2019-2020.

CA-00034890 The complaint of discrimination on grounds of gender brought by the Complainant against the Respondent is not well founded.

EEA-discrimination-gender.