ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034214
Parties:
| Complainant | Respondent |
Anonymised Parties | A Teacher | A Board of Management |
Representatives | Olivia Crehan BL instructed by Anthony Collier, Collier Law | Claire Bruton BL instructed by Liam Riordan Mason Hayes & Curran |
Complaint(s):
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-00045136-001 | 09/07/2021 |
Date of Adjudication Hearing: 02/03/2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Prior to the commencement of the hearing, the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities. As evidence was given during the hearing however around the names of purported comparators, which had not been provided in advance by way of written submission from the Complainant, I indicated to the parties at the conclusion of the hearing that I would have to consider anonymising their names and neither one objected to this to this possibility.
Having subsequently reflected on the matter, I noted that the teachers presented as comparators by the Complainant are not involved in the present complaint and while I recognise that in such circumstances it is possible to simply describe them by reference to the subjects they teach, the publication of the names of the parties to the complaint would make them easily identifiable. Having regard to the foregoing, I find that the publication of sensitive information regarding witnesses who are not party to the proceedings constitutes ‘special circumstances’ and consequently I have exercised my discretion and decided to anonymise the published decision.
The Complainant gave sworn evidence in support of her complaint and the opportunity for cross-examination was afforded. The Respondent chose not to present any witnesses.
Background:
The Complainant is a female Leaving Certificate teacher of French who is married with three children and alleged that she was discriminated against on the gender and family status grounds when management of the Respondent school contacted her and requested that she conduct live classes for her students during the pandemic in January and February 2021. Specifically, she asserted that these requests were discriminatory because they were not made of other teachers who were of a different gender and family status. |
Summary of Complainant’s Case:
The Complainant stated in her evidence that she attended a staff meeting in September 2020 where a discussion was had around blended learning during the pandemic and what method of teaching would be chosen. She stated that the staff members chose whatever method they were comfortable with and what worked best for them. In her own case she stated that she chose a visualiser and informed the principal of this. As a result, a visualiser was bought for her by the Respondent and she recorded her classes on this and these were accessed by the students when they desired to do so. Following a complaint made by a student in an anonymous survey wherein it was suggested that the Leaving Certificate French teachers should be conducting live classes, the principal of the Respondent school requested that the Complainant do so. The Complainant asserted that she was discriminated against because the principal did not make the same request of other colleagues who were of a different gender and family status to her. Specifically, she presented three comparators on the gender ground as well as a further two comparators on the family status ground. Comparators on the gender ground The Complainant gave evidence of three comparators on the gender ground 1) Mr F 2) Mr C 3) Mr O’C In cross examination, it was put to the Complainant that Mr F was a Leaving Cert Maths teacher and that although he abandoned teaching live classes to the students after two days, he still attempted, unlike her, to teach live classes and she did not deny this. It was also put to the Complainant that neither Mr C or Mr O’C taught any Leaving Certificate classes which she accepted. Comparators on the family status ground 1) Ms R 2) Ms E The Complainant accepted in cross-examination that Ms R, who taught Leaving Certificate Maths was contacted by the principal on 13 April 2021 to do live classes. The Complainant also did not dispute that Ms R was very sick during her pregnancy which meant that live classes posed a difficulty for her. It was also put to the Complainant that Ms E did not teach any Leaving Certificate classes, which she accepted. In addition, the Complainant agreed in cross-examination that there were other teachers of a different gender but of the same family status as her, who taught live Leaving Certificate classes, namely Mr H, who taught Maths as well as Mr D, who taught live History and Geography classes on a Saturday morning. She also did not dispute that the Respondent’s principal requested that a female colleague of a different family status, Ms F, who also taught Leaving Certificate French, conduct live classes at the same time the Complainant was requested to do so. |
Summary of Respondent’s Case:
In January 2021, during the pandemic, there was an expectation within the Respondent that all teachers would deliver at least 3 live classes a week and that any teaching for Leaving Certificate students would be live. As the Complainant taught a language, where the oral aspect of pronunciation is important, and the Leaving Certificate oral examination amounts to 20% of the final grade, live teaching was particularly important. On 14 January 2021, the deputy principal spoke to the Complainant and asked her if she had undertaken any live lessons with her Leaving Certificate class. The Complainant admitted that she had not and the deputy principal explained the school’s expectation was that this class would have live lessons and all classes are expected to have at least 3 live lessons a week, as was the case for all teachers teaching this year. The Complainant explained that she was home-schooling her three children and the deputy principal sought to work with the Complainant to assist her, including offering to assist her from an IT perspective. The Complainant stated that she would not teach students on a live basis. The deputy principal explained the anxiety faced by students in language subjects and the importance of some face to face time. She suggested going online for the first few minutes of a class to allow students to communicate to her face to face, but again the Complainant refused. In February 2021, the principal of the Respondent became aware of a comment in wellbeing surveys that no live teaching had occurred in a Leaving Certificate class in some time. As the survey was anonymous, he did not know which French teacher it concerned. On 2 February 2021 therefore, the principal emailed the two Leaving Certificate French teachers about the concern, including his phone number and asking for contact to resolve the issue. The Complainant replied stating that she was not now, and would never in the future, engage in live online teaching. The principal formed the view that the dismissive language and tone of the Complainant’s response email was inappropriate. On 4 February, the principal replied to the Complainant’s email. He referred to the wellbeing needs of students and his dismay at the Complainant’s inflexibility and her refusal to engage in any further conversation on the subject. He asked to have a meeting as soon as possible to resolve the issue. On 25 February 2021, the Complainant replied stating that she could not do live lessons due to having three primary school children at home and had informed one of the three deputy principals of this five months previously. On 5 March 2021, the principal repeated again that he was concerned about the unprofessional communication and asked if the Complainant would meet with him so that resolution could be found through dialogue. The Complainant said that due to Covid regulations she was not willing to meet in person but only through Zoom. The principal stated that as schools had resumed classroom teaching (as of 1 March 2021), a face-to-face meeting with all necessary public health precautions taken would be more appropriate. On 11 May 2021, the Complainant asked for details of the complaint made by the Leaving Certificate student in the aforementioned survey as well as the name of the student; she also sought the Department’s guidance on online teaching and for examples of her alleged disrespect. She stated her previous requests for the aforementioned information had been ignored, and that as the principal had neglected to arrange a meeting, she would be invoking the Grievance Procedure. She also requested the documents for the Grievance Procedure and the Dignity at Work policy. On 14 May 2021, the principal responded emphasising how busy it had been since the full return to school and that he would forward the required policies; he sent these to the Complainant on 19 May plus the student feedback from two surveys done during online teaching which referred to the lack of “live” online teaching. He also clarified examples of condescension, disrespect and dismissiveness in the Complainant’s emails as requested. He asked for a meeting at a time that would be convenient to both. On 4 June 2021, the Complainant emailed the Chair of the Board of Management to submit a grievance under the Respondent’s Dignity at Work Policy. The Complainant’s grievance stated that she “had been specifically targeted for undue criticism and harassment” by the deputy principal as well as the principal arising out of her “chosen methods” for teaching remotely while schools were closed during the Covid-19 pandemic. The grievance was acknowledged by the Respondent on 16 June 2021 and a copy of the Dignity at Work policy was provided to the Complainant. The Complainant was requested to consider whether she wished to have her grievances dealt with informally as per the policy. The Complainant responded by email dated 23 June requesting that she discuss her grievances with the relevant contact person as per the policy. The Dignity at Work policy provides that the relevant contact persons are employees of the school and the Complainant was informed of this on 8 July along with the fact that as the school was closed for the summer, such persons were not available. It was made clear to the Complainant that it was hoped to address and expedite the grievance process when the school staff returned to work in August 2021. The following day, 9 July 2021, the Complainant submitted the within complaint to the WRC. |
Findings and Conclusions:
The Law Discrimination in accordance with the Acts is set out in section 6 and states: 6.— (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, ( b ) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination. (2) 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”), ( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”), ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”), ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”), ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”), ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”), ( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”), ( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”), The Burden of Proof The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015. “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.” Findings The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. I note firstly that the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addresses the onerous nature of the burden of proof: “This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination, the Complainant must show that she was treated differently from her colleagues because of her gender and family status. Specifically, in the instant case, she must demonstrate that she was treated differently by the Respondent compared to other teachers because she was asked to conduct live classes on the ground firstly that she was a woman and secondly that she was a parent. I note in the first instance that the Complainant was contacted by a deputy principal of the Respondent in January 2021 and requested to conduct live classes with her students, which she refused to do. It was also not disputed that the Complainant was contacted by the principal of the Respondent in February 2021 and asked to do live classes on foot of an anonymous comment made by a student in a survey that there were no in-person French classes being taught to the Leaving Certificate students. In terms of the three comparators presented by the Complainant on the gender ground, I find that Mr F is not a valid comparator because, unlike her, he conducted Leaving Certificate Maths classes following a request that he do so, although I recognise he stopped this after two such attempts. Moreover, there was no evidence presented to suggest that there was any complaint made about live Leaving Certificate Maths classes not being held. I also find that neither Mr C nor Mr O’C are valid comparators because neither one of them taught Leaving Certificate classes. In addition, the Complainant accepted in cross examination that two other teachers of a different gender, namely Mr H, taught live Leaving Certificate Maths classes, and Mr D, taught live Leaving Certificate History and Geography classes. Given that two of the Complainant’s male comparators, namely Mr C and Mr O’C, did not teach Leaving Certificate subjects, that another one, namely Mr F, did at least attempt to conduct such classes and that there were at least two other male teachers, namely Mr H and Mr D, in the school teaching live Leaving Certificate classes at the time the Complainant was requested to conduct such classes, I do not find that the she has established a prima facie case of discrimination on the gender ground. In terms of the two comparators presented on the family status grounds, I noted that Ms E did not teach Leaving Certificate classes and that Ms R was contacted by the school to conduct live classes on 13 April 2021, although there was no suggestion this was on foot of a complaint having been made. I also noted that the other French teacher in the Respondent’s school, Ms F, who has a different family status to her, and who also taught Leaving Certificate classes, was contacted by the principal and asked to teach live classes on foot of the anonymous survey comment. Given that one of the comparators presented by the Complainant, Ms E, did not teach Leaving Certificate subjects, that the second one, namely Ms R, was contacted by the Respondent to conduct live classes and that the other Leaving Cert French teacher, Ms F who had a different family status to the Complainant, was also contacted to conduct live Leaving Certificate classes as the same time as the Complainant, I do not find that the she has established a prima facie case on the family status ground. For the reasons outlined above, I find that the Complainant has not established a prima facie case of discrimination on either the gender or family status grounds. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
As the Complainant has not established a prima facie case of discrimination on either the gender or the family status ground, I find that she was not discriminated against. |
Dated: 28th April 2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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