Complainant

Respondent

Parties

Regina  Walsh

Board of Management Scoil Eiltin Naofa

Complainant

Respondent

Anonymised Parties

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Representatives

Eliza Kelleher B.L. instructed by Rory O'Halloran Thomas J O'Halloran Solicitors

Cathy Mcgrady B.L.  instructed by Edel Kennedy, Mason Hayes & Curran

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-00033822-001

16/01/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under oath while two of the three witnesses for the respondent gave evidence under oath and the third gave evidence under affirmation.  Both parties were offered and availed of the opportunity to cross examine witnesses.

The complainant submitted that she was discriminated against on the basis of gender when she applied for the position of Principal with the respondent.

The complainant submitted that she received the result of the selection competition when she received a notification of the successful candidate on the ‘textaparent’ application.  The complainant did not receive a letter of regret in advance of this text notification. The complainant submitted that the successful candidate was a male with significantly less experience than the complainant. 

The complainant also noted that the successful candidate was related to the Chair of the Board of Management and suggested that the interview board members had been steered by the Chair into giving the role to the successful candidate, a male relative of the Chairman of the Board.

The complainant submitted that she had been a working teacher for 32 years and had been employed at the respondent school for 29 years.  She was appointed as a Deputy Principal in 2009 and was a member of the Board of Management since that period.

The complainant submitted that she applied for the position of Principal in 2012 but was unsuccessful on that occasion.

The complainant submitted that the promotion was discriminatory because the successful candidate was male, the successful candidate was the most junior member of staff while she was the most senior, the successful candidate had 6 years teaching compared to her 32 years, the successful candidate did not have experience as deputy principal, as a member of the Board of Management or as a designated liaison person as the complainant did.

The complainant further submitted that the promotion was discriminatory because the successful candidate did not have the qualifications she had, the interview score sheets did not have any or just contained minimal notes, the decision to hire an inexperienced male over the complainant is ‘prima facie’ flawed and discriminatory, and the respondent hired a less experienced male over three experienced female applicants in 2012.

The complainant submitted that there were no, or minimal interview notes and that this failure to document the answers or contemporaneously justify the marks given is prima facie evidence of discrimination.

The respondent denied the claim of discrimination pointing out that a fair and objective selection process took place, in line with required and best practices, following which the candidate who achieved the highest ranking was appointed.

The respondent submitted that the successful candidate was qualified for the role, with preferential academic qualifications, and was deemed more suitable for the role of the complainant.

The respondent submitted that it advertised the position noting the following traits as desirable: a commitment to lead and strengthen the Catholic ethos of the school, evidence of continuing and relevant professional development, relevant qualifications in leadership and an effective leadership style, evidential expertise in the area of ICT, proven ability to work as a member of a team, excellent communication skills, expertise in planning and organising workload and  expertise in development, implementation and evaluation of innovative school based activities.

The respondent submitted that it followed the appropriate governance manual for interviewing and recruitment processes.  A three-person interview board was convened with two independent people, one female.  The interview board convened to review the five candidates for the position. Criteria were established before the applications were considered with the eligibility being set out in an appendix to the Governance Manual.  The Interview board were satisfied that all candidates met the eligibility criteria based on the information they provided in their application forms.  At this meeting the interview board identified the questions that they deemed appropriate to assess the selection criteria.  The questions were chosen from lists of standard questions provided by the two independent interview board members.

The respondent submitted that one candidate withdrew from consideration leaving four candidates, two female and two male who interviewed for the position.   Each candidate was asked the same questions, in the same order and scores were assigned by each interviewer for each candidate immediately following their respective interviews.

The respondent submitted that the complainant’s performance at interview was adequate however, the successful candidate performed very strongly at interview and achieved an overall score higher than the other candidates, including the complainant.  The interview board met immediately following the conclusion of the interviews to compile the results.  The complainant was ranked third of four candidates. 

The respondent submitted that it understands that the results issued to the complainant by letter to her home address in advance of the text message issuing.  The respondent took issue with a number of elements in the process and made representations via her union.  The respondent also submitted that none of these elements related to gender discrimination.  The respondent further submitted that it was not until three months later that it was notified that the complainant was asserting gender discrimination.

The complainant outlined her case in oral testimony, she noted that was very concerned that the chairman of the Board of Management was involved in the interview as she felt he would favour a male candidate.  She gave evidence regarding a number of occasions where she believed that he favoured male staff.  She noted that the Chairman and the successful candidate were second cousins.  She thought she had done a ‘fantastic interview’.  She noted that the decision was made on the date and ratified that evening by the Board of Management.  She noted that the interview took place in the Chairman’s public house which she considered inappropriate.  She went through a number of her answers to the interview questions noting that the chair was marking her down all the time. 

The complainant asserted that the interview board didn’t give her enough respect as a woman to listen to her answers.  She suggested that in response to a number of questions that she know the answers “as if I was going into my leaving cert” and accordingly should have scored better.

The complainant suggested that the Chair gave her the lowest scores because “he had a man in mind for the job”.  She submitted that process was led by the Chair, and that the interview did not take place in an independent venue, in that it took place in a pub he owned.  She also submitted that the independent assessors are only taking what the Chair said, and that he had undue influence.  She did concede that she had no facts to base this on, only that the independent assessors had no independent knowledge of the way the school runs. 

This  witness came across as broadly credible but fairly vague in terms of her recall of events.

Nonetheless, I have considered all the written and oral evidence provided by the complainant and I am satisfied that the complainant outlined the following facts which were not disputed by the respondent:

·       The complainant is a woman and the successful candidate is a man

·       The complainant had approximately 32 years teaching experience while the successful candidate had approximately 6 years’ experience

·       the successful candidate did not have experience as deputy principal, while the complainant had 10 years

·       the successful candidate did not have experience as a member of the Board of Management while the complainant had 10 years

·       the successful candidate did not have experience as a designated liaison person whereas the complainant did.

·       the successful candidate did not have the qualifications the complainant had, and

·       no or minimal interview notes were retained.

Section 85A (1) of the Employment Equality Act, 1998 states that:

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Having regard to the foregoing, undisputed facts, I find that the complainant has established facts from which discrimination may be inferred.  Accordingly, it falls to respondent to rebut the inference of discrimination raised.

The respondent presented three witnesses at the hearing.  The three witnesses were members of the interview board for the position of principal with the respondent.  The first witness, LT, was an independent assessor since 2011 who has undertaken interviewer training specifically geared towards being an independent assessor.  She had no prior knowledge of any of the candidates and had no prior involvement with the school.  In evidence she outlined how all of the five candidates met the minimum criteria.  She outlined how the questions were chosen form templates that she brought but the questions were ‘fine-tuned’ to the school setting.  This witness outlined how, on the day of the interview, it is not about how good a teacher you are but it is dependent on your performance on the day.

The witness outlined how the position of principal is not considered to be a promotional post from the Deputy role.  The role is that of senior manager.  She outlined how the interview with the complainant went and indicated that the complainant seemed to have the feeling that it was ‘my turn next’.  The witness outlined where she considered that the complainant did not provide optimal answers or demonstrated what she would have expected form a Principal postholder.  She went through the majority of the questions asked at interview and noted various answers that were weak or inaccurate or reflected more of a teacher’s role rather than a Principals role.  She also noted that the complainant indicated that where there were arguments in the staff room that an appropriate way to deal with this was to give someone the ‘cold shoulder’.

The witness noted that the marks were assigned immediately.  She noted that the Board was never led by anyone and that if it had been she would have called time on the process to enable a new, independent board to be convened.  The witness noted, very emphatically, that Gender never came into it and that she had no doubt that they had chosen the person who delivered on the day.

The witness was cross examined by the complainant’s representative who posed a series of questions as to the competence and capability of the witness and questioning her recall in a situation where no, or minimal contemporaneous notes were taken.  It became more apparent as the cross examination continued that the witness possessed extremely good powers of recall and that she was extremely competent and capable as an interview board member.

In response to strenuous cross examination, the witness categorically denied that she was swayed by the Chair or that he ever tried to influence the choice of candidate beyond his role as Chairman of the interview board.  The witness came across as an extremely competent and credible witness.

The next witness for the Respondent, JB, was the Chair of the Board of Management.  He noted that it was a requirement for him to be on the interview board under the appendix to the Governing Manual.  He outlined that his first time meeting the two board members was at the meeting to open the sealed application envelopes.  The noted that LT had a list of question that they chose from.  He noted that it was not possible to hole the interviews in the school, which was not a neutral venue in any case.  He offered the use of the function room in his public house as it was equipped with everything they would need, such as toilet facilities, etc.  he outlined that there were 20 questions for each candidate, he took five, LT took eight and the third witness, FNF took seven questions.  He knotted that the took 15 to 20 minutes between interviews to mark up while it was fresh in their minds.

The witness remembered that the complainant gave some very poor answers such as that regarding her vision of the school and how she wold deal with arguments in the staff room indicating that she would use the ‘silent treatment’ and ‘eyeballing’, not a good answer in his opinion.  The witness denied pressuring the other board members into choosing anyone and noted that it was his first time meeting them.

Under cross examination, the witness denied that he would prefer a male candidate but noted that “he gave the marks to the best man for the job”.  He noted that he felt that the females under his stewardship were not treated less favourably.  He stated that he felt that the complainant did not elaborate on her experience as Deputy Principal when she was given the chance.  He felt she could have said more.  He also noted that in response to the question on her vision for the school she outlined the addition of a bicycle shed.  He also stated that she had said that “it was her turn”.  The witness stated that the complainant was marked as she deserved and that on the day the interviews “were marked with what every candidate said”.  The witness confirmed that he definitely did not speak to either member regarding the successful candidate.

The witness came across as reasonable credible although some of his testimony was a little vague.

The third witness for the respondent was also an independent assessor and a member of the clergy.  He noted that all candidates met the minimum requirements and that the board agreed the questions to be asked of the candidates and assigned the questions to the board members, finalising the timings and order of the questions.  He also noted that although he had not met the first witness, LT, he knew of her through her involvement in sport on a county level.

He stated that the although he had brought lists of question, they chose those brought by LH as they were more suited to the filling of this type of role.  He noted that he didn’t take details notes as he preferred to listen to candidates answers rather that writing while a candidate was talking (He noted that there had been complaints in that type of approach a number of years previously).  He acknowledged that he could recall some of the answers but not all, and that he recalled tone of the answers rather than the particular content.  He did recall that the complainant said that “silent treatment in the staff room works well”.  He was quite startled by this admission and so remember it.

The witness noted that there was a constant theme of “its my turn to be principal” about the complainant’s interview and she used phrases such as ‘As her children had grown up, she now had the time’ and that she was it as “her time, her turn”.  He noted that this approach was “not relevant as it was not what the job is about”.

He felt that the complainant did not provide the comprehensive answers they were looking for at the start of the interview but recalled that she became much more confident as the interview went on.  He noted that she had a wonderful ‘blás’ and confidence with her Gaeilge and noted that it was “excellent, a perfect grasp and that she was very confident in Irish”.

The witness noted that on the other hand the successful candidate had confidence from the work go and had a vision of where he saw the school. He noted that the successful candidate didn’t just give the minimum and was exceptionally good on the Catholic ethos noting that he had just completed a masters qualification on that and so should be able to answer on this topic.

In response as to whether they were pressured to choose one candidate over another, he stated that if pressure was put on them by the Chair he would had gone back to the diocese to reconvene the board.  He noted that the standard application for was not normally used as, to his mind, it does not reflect the candidate.

The witness came across as a good witness, credible, clarifying matters as need be and his responses did not come across as rehearsed.

The complainant disagreed with the three witnesses recall of the events of the interview, disputing some of the detail of her answers, particularly when it came to how to deal with arguments in the staffroom.

Having considered all the written and oral evidence from the complainant and the three witnesses for the respondent, I am satisfied that although the interview board did not take or retain comprehensive notes of the interview, the accounts of the three respondent witnesses was broadly consistent, not rehearsed and gave a cogent account of an individual who may have been capable of doing a better interview but on the day was not the candidate who performed best.  Two of the witnesses gave very credible accounts of their considerations on the day while the third, although somewhat vague, gave an account of the interview that was consistent with the other accounts. 

The representative for the complainant suggested that the case of Pamela Brennan v BOM Scoil Mhuire agus Iosaf Junior School, ADJ-00018053, 12 September 2019 is instructive as regards the instant case.  I note that the adjudicator, Ms O’Shea made, amongst other things, the following remarks:

“Contradictory evidence was advanced by the panel members in relation to when the marking sheets were completed with the Chairman asserting they were completed after each candidate left the room while the other panel members indicated that the marking sheets were completed at the end of what was described as a comparative process and based on the notes they took during the course of the interview.”

and

“On the basis of the foregoing findings, I have concluded that the respondent has not provided convincing and transparent rationale for their scoring .The respondent has failed to provide cogent evidence to   rebut the inference of discrimination   and accordingly I find on the balance of probabilities that the process was tainted with discrimination on gender grounds”

The instant case can be differentiated from ADJ-00018503 in that there was no contradictory evidence advanced by the interview board, rather it was consistent and the witnesses have provided convincing and detailed rationale for their scoring and for their collective conclusion that the complainant was not the best person for the job.

On the basis of the foregoing, I find that the respondent has rebutted the inference of discrimination raised and that the complainant was not discriminated against in relation to this complaint.

Having considered all the written and oral evidence in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality Act – Gender Discrimination – Burden of proof – Inference of Discrimination – Rebuttal – no discrimination