Complainant

Respondent

Anonymised Parties

Teacher

Board of Management

Representatives

Mr. Alastair Purdy, Alastair Purdy & Co. Solicitors

Mr. Liam Riordan, Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00031995-001

04/11/2019

The Complainant commenced employment with the Respondent on 9th November 2006. At all times the Complainant was engaged as a teacher within the Respondent organisation. The Complainant remains a permanent, full-time member of staff.

On 4th November 2019, the Complainant referred the present complaint to the Commission. Herein he alleged that he had been discriminated against on the grounds of “gender”. The complaint form further stated that the Complainant believed the Respondent had failed to promote him on discriminatory grounds and that they had victimised him thereafter.  By subsequent submission, the Complainant alleged that the outcome of two internal recruitment competitions were tainted by discrimination on the part of the panel. The Complainant further alleged that the Respondent failed to investigate his grievances in relation to this matter thereafter. In denying these allegations, the Respondent submitted that the process was conducted in line with all relevant contractual and internal processes and denied any allegation of discrimination in respect of the same.

Hearings in relation to these matters were convened for numerous dates across 2019 and into 2020. Unfortunately, the progress of the matter was initially delayed by the restrictions arising from the Covid-19 pandemic and the difficulty in convening a hearing on foot of the same. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence. On foot of the same, the hearing was designated to the present Adjudication Officer to commence anew. Following a case management session, conducted by means of the remote platform, the substantive matter was heard over two days, falling on 8th and 9th June 2022.

During the hearing of the matter, the Complainant, made an application for the matter to be anonymised in its published form. This application was grounded on the fact that the facts of the case would inevitably involve the disclosure of sensitive information relating not only to the Complainant, but to members of staff that were not party to the proceedings. The Respondent stated that they supported the Complainant’s application of the grounds cited.

In this regard, Section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 provides that, an adjudication officer may, following an application from a party to the proceedings or otherwise, due to the existence of ‘special circumstances’, direct that proceedings be conducted in private. The WRC’s guidance note in relation to the same, provides a non-exhaustive list of matter that may result in a written decision being anonymized. In this regard it is noted that the grounds cited by the Complainant do not fall under the same. It is further noted that the guidance note states that,

“Following the Supreme Court’s rulings in this area, it should be noted that the fact that the parties both consider that there are ‘special circumstances’ or that an individual or company’s reputation might be impacted by having an employment or equality complaint ventilated in public does not automatically constitute a reason for the hearing to be heard in private.”

Having considered that Complainant’s application as far as it relates to himself, I find that the same does not constitute ‘special circumstances’ within the meaning of Section 4(B) of the Act. The nature of the issues referred by the Complainant necessitates an examination of his work record and the recruitment process. The administration of justice dictates that such matters should, in the main, occur in public and discomfort on the part of the person bringing the complaint regarding the facts being made public is does not constitute ‘special circumstances’. Notwithstanding the same, I note that the facts of the matter, and the evidence provided, relate to an examination of not only the Complainant’s application but to that of the successful candidates. These persons are not party to the present dispute and the publication of the same will inevitably result in their identification, along with some person details. In such circumstances it is possible to simply describe these persons by their job title only, however the publication of the names of the parties to the dispute will render the same obsolete. Having regard to the foregoing, I find that the publication of sensitive information regarding witnesses that are not party to the proceedings constitutes ‘special circumstances’ and consequently I have exercised my discretion to anonymise the published decision.

In the course of the hearing, the Complainant gave evidence in support of this own complaint. In defending the allegations, the Respondent called six witnesses, a member from the first interview panel (referred to as “Panel Member One”), the Chairperson of the Board of Management, a member from the second interview panel (referred to as “Panel Member Two”), the Deputy Principal, with brief evidence provided by a teaching colleague and a representative of the Joint Managerial Body (referred to as “A JMB Representative”)

Bother parties exchanged lengthy submissions and replying submissions in advance of the hearing. Some procedural issues were raised in the course of the hearing. As these are not determinative of the substantive matter, they will be dealt with following a consideration of the relevant evidence.

The Complainant commenced employment with the Respondent on 9th November 2006. At all times the Complainant’s role was describe as that of “Guidance Counsellor”.

In or around September 2018, the Respondent advertised for the vacant role of Assistant Principal. As the Complainant believed he had the requisite experience and qualifications for the role, he applied of the same. On 4th October 2018, the Complainant interviewed for the position. During this interview, much to the Complainant’s surprise, he was asked this question, “when you came back in September how did you compare the results of your subject with those of the national average?”. By response, the Complainant explained that as guidance counsellor, his role was not an examinable topic. At this point, the Complainant felt that his application had not been reviewed properly, or at all. As the only male applicant for the role, the Complainant stated that he felt that he was out of contention for the position. This suspicion was confirmed thereafter, when a female teacher with less experience was awarded the position.

Upon receiving and reviewing the results of the marking scheme, the Complainant noted that he was awarded similar marks as the successful candidate in a number of areas. This was supported by the fact that the chair of the panel outlined a number of areas where the Complainant excelled. Following the conclusion of this first interview, the Complainant discovered that the successful candidate had already been timetabled off for the position of assistant principal. Having regard to the same, the Complainant stated that he was never actually considered for the position, and that the interview process was, in effect, a foregone conclusion.  

On 5th November 2018, the Complainant wrote to management voicing a number of concerns regarding the interview. In addition to the points already outlined in evidence, the Complainant stated that the Board of Management operated in a secretive manner and that the position was sanctioned by an incorrectly constituted Board of Management. The Complainant stated that he received no substantive response to these concerns.

In April 2019, the Complainant advertised for another role, that of Acting Assistant Principal. On 29th April 2019, the Complainant once more applied for this position, with an interview being arranged for 16th May 2019. Again, despite being the most experienced and long-serving candidate, the Complainant was not successful in his application. When the Complainant received feed-back in respect of this application he noted that despite scoring highly in some areas, much of his relevant experience was over-looked. In addition to the same, it became apparent that a member of the interview panel kept minimal notes and that the points noted contained exclusively negative observations regarding the Complainant’s experience.

On 25th June 2019, the Complainant again wrote to management voicing a number of concerns regarding the handling of the interview process. In particular, the Complainant noted that the successful candidate openly noted to her peers that her experience as TY co-ordinator was critical to her success. The Complainant noted that since the commencement of his employment, approximately ten TY co-ordinators were appointed, all of whom were female. Furthermore, it was noted that no open competition was held in respect of these roles, creating a material advantage to female participants in the interview process. Again, the Complainant noted that he was asked questions that were inapplicable to him as a guidance counsellor. The Complainant further noted that his leadership example as a paramedic was immediately dismissed by the selection panel. The Complainant took issue with the fact that the panel found that he had limited experience outside of his role. This comment was seen as peculiar when he had previously held the role of junior cycle co-ordinator. The Complainant drew attention to the fact that a whole school evaluation, dated from 2009, noted a “profound imbalance in the teaching staff” and that “all else being equal (the school) should take into account the gender imbalance in its staff when recruiting”. The Complainant noted that he had been referred to a class “mistress” in the demerit books for a period of five years. Finally, the Complainant stated that he received a different milage rate to a female predecessor.

On 20th August 2020, the principal of the school responded to the allegations raised by the Complainant. She stated that TY co-ordinator roles are voluntary in nature and appointments to the same are considered following discussion and suggestion at staff meetings. Regarding the matters relating to the interview process, the Complainant was referred to the appeal process for such matters outline in relevant circular.   On 27th August 2020, the Complainant responded, advising that the process outlined in the circular would not address his concerns regarding the raised.

On foot of the correspondence above, the Complainant commenced the grievance process. A meeting was duly convened under Section 1 of the internal grievance procedure. In the course of the same, the Respondent continuously stated that the Complainant was “free to appeal” the interview process. The Complainant stated that this response completed ignored the fact that the appeal process as offered did not apply to the allegation that he was raising, in particular his allegation of discrimination on the grounds of gender. The Complainant continued this complaint through the relevant internal channel. Each time however, the Respondent stated that it was open to the Complainant to appeal the outcome of the interview through the internal channels, effectively ignoring the Complainant’s submission in this regard.

The Complainant stated that he was discriminated against on the grounds of gender on two separate occasions. He stated that for both interviews he was the most senior application for the roles. He stated that much of his relevant experience was not taken into account by the interview panel. In addition to the same, he stated that during the second interview in particular one member of the panel took exclusively negative notes, while another was openly hostile to him. He stated that there was no evidence of the questions being tailored to him on accordance with internal procedure and that the incorrect forms were used during the process. He stated that criteria that inherently favoured female staff members (i.e. the TY co-ordinator roles) was not afforded to him. Having regard to the foregoing points, and the indisputable fact that in all previous competition the most senior application was awarded the role, he submitted that he was not successful in these applications on the ground of his gender.

In addition to the foregoing, the Complainant stated that he suffered victimisation on foot of raising the above-mentioned complaints. In particular, the Complainant stated that upon raising the issue of gender-based discrimination, the Respondent continually failed to address the same. The Complainant further stated that the persons that dealt with the grievance were the same as those that sat on the panel, further denying him the opportunity to have these matters considered internally. In evidence, the Complainant further stated that he had been denied a work-book and the use of a mobile phone by the Respondent on foot of these complaint. Finally, the Complainant submitted that his counselling hours had been reduced following his raising of these issues.

From the outset, the Respondent denied the Complainant’s allegations, submitting that the Complainant had neither been discriminated against or victimised in the course of his employment.

All internal interview processes within the school are conducted in strict accordance with Circular 0003/2018. This Circular dictates that the Board of Management must appoint an interview board comprised of an independent chair person, a nominee of the Board of Management and the principal. Regarding the first interview, the Complainant was one of five applicants for the role. Prior to the interviews, the panel meet to set questions for each applicant and confirm dates and times etc. Each candidate was asked the same questions with the marking being based on the four criteria set out in the circular. The interview notes in respect of the first interview demonstrates that great care was taken in respect of the answers given by the Complainant. In this respect, it was noted that the Complainant had scored quite highly in the process but that another of the candidates was deemed to be a more suitable candidate for the role. It was absolutely denied that this candidate was provided with scheduled time off in advance of the interview, rather it was demonstrated that this employee had been scheduled for this time off previously.

The Complainant entered a second competitive process in May 2019. Again, this interview was conducted in accordance with the relevant circular letter. This competition related to a temporary maternity leave cover, with the Complainant being one of two persons being interviewed for the role. In this particular instance, the interview panel drew the conclusion that the other applicant was the more suitable candidate and she was duly appointed to the role. Again the Respondent denied any allegation of gender based discrimination in relation to this competition. They submitted that the same questions and marking scheme were applied to both candidates. They further submitted that the notes of the interview process clearly demonstrate that the successful applicant was award the position based on reasonable objective criteria.

Regarding the grievances raised by the Complainant, the Respondent submitted that the correct process of ventilating the same would be by virtue of an appeal of the process in accordance with the relevant circular. Despite being informed of the same on numerous occasions, the Complainant elected not to engage with the same instead opting to progress the matter as an internal grievance.

The Respondent further denied that the Complainant suffered any form of victimisation in the course of his employment. They stated that the Complainant’s grievances were processed in line with internal procedures. The primary allegation contained within the grievance was not actionable under that process but should have been the subject of an appeal of the process. It was further denied that the Complainant was not issued a workbook or a phone as a result of raising the grievance. Finally it was denied that Complainant’s counselling hours were reduced as a result of raising these internal issues.

In evidence the Chair of the Board of Management outlined that he had formally been principal of two separate schools prior to his appointment. He stated that the purpose of both recruitment processes was to find the best person for the job. He stated that this process has nothing to so with the gender of the applicant or any other discriminatory ground. He stated that in such situations the successful candidate was picked based on their performance on the day of the interview. Said performance is judged against the manner in which they outline their previous experience and relate the same back to the relevant criteria. In relation to his notes from the interview, he stated that individual interviewers would keep different levels of notes. He stated that when a member of the panel was asking questions they tended to keep fewer or no notes in relation to that topic. When asked about the minimal notes taken at the second interview, he stated that the Complainant tended to give a “helicopter view” of the topic, and did not demonstrate the application of his specific skills within the workplace. Nonetheless, the witness stated that the Complainant performed well in the interviews, but that in both situations the successful candidate scored higher. Regarding the marking of the Complainant, the witness stated that this was consistent in both processes and amongst the panel members. He stated that the Complainant received full marks for seniority and that his experience in this regard was taken into account. He stated that former process used to award significantly more points for seniority but that this had recently been changed. In cross-examination, the witness accepted that all marks were consistent between the panel members but denied that this raised an inference of collusion between the same. He accepted that he didn’t modify the questions for the Complainant but stated that the question were the same for all candidates. The witness accepted that he took far fewer notes during the second interview process but stated that this was because the subject matter was much the same as the first interview. The witness accepted that some of the negative comments were written in after the notes were taken but stated that this was done during the interview whilst considering the examples being given.

In evidence, the Panel Member of the Second Interview stated that he held a senior management position in a school and was nominated to sit on the interview panel for the second interview process. He stated that he had no prior knowledge of the Complainant. He stated that he had sat on many such interview panels and understood the importance of the role. He outlined that at the outset of the interview process, the panel would meet to discuss the logistical aspects of the process. At this point the panel would not discuss induvial candidates. He denied that any representations would be made by any party in relation of a favoured candidate at this or any other point of the process. He stated that if he became party to such information, he would make a point of abandoning the process as the same had been tainted. He denied, in strong terms, acting in the manner ascribed to him by the Complainant. In particular, he denied being in any way rude or dismissive during the process. He stated that in certain situation he would be required to cut off an answer in order to allow the allotted time to be used efficiently but denied that he would ever prevent an candidate from giving answers or providing examples. Regarding the marks allotted to the Complainant he stated that many of the examples provided by the Complainant were confined to his own area and did not focus on leadership outside of the same. He further stated that some of the examples provided by the Complainant were too generalised without a demonstration of leadership in the school environment. In cross examination, the witness denied that the questions asked of the candidates put the Complainant at a disadvantage as a guidance counsellor. He accepted that some of the negative comments contained in the notes were taken at a different time, but stated that his was done during the interview in summation.

The Respondent also called a representative from the Joint Managerial Body Secretariat of Secondary Schools (JMB). This witness stated a school’s internal grievance procedure is an inappropriate mechanism by which to review a recruitment process. She stated that such processes are carried out by a specialised panel that must operate as a separate entity to the management of a school. In answer to a question, she accepted that the grounds for appeal of a recruitment process are particularised in the relevant circular. She further accepted that the allegation raised by the Complainant may not fall under one of the categories enumerated therein.

A colleague of the Complainant gave evidence in respect of the issue of the successful candidate’s hours. She stated that this person’s hours were reduced on foot of a function this person fulfilled in the school. She stated that this had been the case for a period of time prior to the recruitment process and that the hours were not reduced in advance of the same.

In the present case, the Complainant has alleged that he suffered gender-based discrimination as regards an internal recruitment process. In addition to the same, the Complainant alleged that he was victimised by the Respondent for raising these issues by means of the internal grievance procedure. In denying these allegations, the Respondent submitted that the recruitment process adopted was fair and impartial. They further denied any victimisation of the Complainant thereafter.

In this regard, the present complaint was referred on 4th November 2019. The first recruitment process referred to by the Complainant took place in September 2018, in excess of one year prior the referral. Nonetheless the Complainant, via his representative, stated that the alleged discrimination continued until the second interview process, taking place on 16th May 2019. In such circumstances, the Complainant alleged that the most recent act of discrimination occurred within six months of the referral of the complaint and the matter is consequently in time.  

Section 77 (5A) of the Acts provides that,

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides that,

“…discrimination or victimisation occurs (i) if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

The Complainant has alleged that the allegations regarding the internal processes adopted are sufficiently connected so as to form a “continuum” of discrimination. Having considered the allegations regarding the Respondent’s conduct during the recruitment processes, it is apparent that the Complainant has alleged that the Respondent engaged in much the same discriminatory practice, most notably awarding a promotion to a person with less demonstrable experience and qualifications, on two separate occasions. Further the same, I note that the two processes were conducted within a fairly short period of time, indeed it is apparent that they were the only two processes undertaken by the Respondent within the timeframe. Having regard to the foregoing, I find that the Complainant’s allegations regarding the defects in the recruitment processes constitute a “continuum” of alleged discrimination and consequently the earlier recruitment process will be considered as part of the substantive complaint.

Regarding the substantive matter, Section 6(1)(a) of the Act provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2) provides that “gender” is included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

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

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

In the matter of Brandon House Hotel -v- Barska EDA148, the Labour Court held that,

“…the failure to consider an equally or better qualified woman for a promotional position to which an equally or less qualified man is appointed can, in and of itself, raise an inference of discrimination. In such a case it is for the employer to prove on cogent evidence that the decision was in no sense whatsoever tainted by discrimination.”

In the matter of Kathleen Moore Walsh -v- Waterford Institute of Technology EDA042 the Labour Court held that,

“…in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merit of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”

Finally in the matter of O’Halloran -v- Galway City Partnership EDA077, the Court held that,

“…the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”

In evidence, the Complainant stated that he was the first male teacher in the Respondent’s history. He stated that every promotional opportunity during the first number of years of his employment was won by a female member of staff.  From Chairperson of the Board’s evidence, it is apparent that prior to the Complainant applying for the post of responsibility, the manner in which these competitions were won was based primarily on experience. This created a situation whereby employees would effectively “wait their turn” for a promotion that was based, almost solely, on experience. It is further apparent that this arrangement came to an end with the first competition the Complainant engaged in. Regarding this competition, the weighting of the marks for experience were dramatically reduced, with a greater emphasis placed on qualifications and the application of  leadership within the school environment.

Having regard to the foregoing, the Complainant was placed in a position whereby he entered a competition for a promotion that he, entirely reasonably, expected to win. When this turned out not to be the case, the Complainant formed the view that the process was deficient, and that the outcome was pre-ordained. In particular, the Complainant believed that the successful applicant hours were reduced in advance of the competition, evidencing manifest unfairness in the process. Having heard the evidence in this regard, I accept the Respondent’s contention that this person teaching hours were reduced, not due to a pre-judgement of the process, but because they had appointed duties outside of teaching hours prior to their subsequent promotion.

The Complainant raised further issue regarding the application of the marking scheme, submitting that the same did not take into account his relevant experience. Having reviewed the same, I note the Complainant received full marks for seniority, as did the successful candidate. I further note, from the evidence of the panel member, that the questions were agreed in advance of the hearing and were asked of all candidates to the interview. While the Complainant has taken issue with the fact that some of these questions are inapplicable to the Complainant’s role as a guidance counsellor, when the same questions were asked of all parties, they cannot be said to be discriminatory on the grounds of gender.

The Complainant’s primary issue arises with the marks awarded for the other criteria utilised. In particular, the Complainant suggested that his prior experience as a paramedic was not properly taken into account and was effectively disregarded. Having reviewed the records in this regard, I note that the Complainant received a scores within the ranges of 14 to 13 in respect of the “leading school development” section, a score that is considered “good”, if not excellent by the panel. Having regard to the same, it is apparent that the panel did believe that the Complainant had good experience in this regard and did take into account the Complainant’s relevant experience. The evidence of Respondent that a good example will lead to a good mark, but the integration of that experience within the school will lead to an excellent one, is a reasonable observation and far from irrational. While the Complainant may believe that he provided excellent examples under all of the criteria, ultimately the judgement of the same will fall to the interview panel. While the Complainant may take issue with the view taken by the panel, this does not, of itself constitute evidence of a discriminatory practice. I further note that this competition related to an AP1 position (as opposed to a more junior AP2 position). In this regard it is unsurprising that the successful candidate might have direct management experience within a school setting.

Regarding the second interview process, the Complainant described the same as a “very unpleasant experience”. He stated that from the outset, a member of the interview panel was openly hostile to him. In evidence, the panel member vehemently denied any such allegation and stated that he treats all candidates with the same level of respect and courtesy. In this regard it is apparent that the panel member is a long-standing and experienced teaching professional, who has sat on many such panels in the past. While certain individuals many have a more direct or brusque manner, this is a far cry from an allegation of a failure to listen to the Complainant’s responses and not allowing time to outline responses. In effect, the Complainant’s allegation is that this member, who was not an employee of the Respondent, colluded with the management of the Respondent to disadvantage the Complainant during the process. Having heard the panel member’s evidence in this regard, and in particular his evidence regarding the professional standards to which he holds himself and other panel members, I cannot find that this is the case.

The Complainant has alleged that the successful candidate had an advantage in that she had previously been appointed TY co-ordinator. The Complainant stated that such appoints are made entirely on the discretion of the principal with no open competition being held in respect of the same. In circumstances whereby all of these appointments have been to women, he submitted that the same constitutes further evidence of discrimination on the grounds of gender. In this regard, it is common case that the Complainant was the first male teacher in the staff. In such circumstances it is inevitable that the majority of such roles will be assigned to female member of staff. Furthermore, it is apparent that the Complainant was in fact assigned a similar role, that of Junior Cycle Co-Ordinator. The fact of the Complainant’s appointment to this role demonstrates a willingness of the part of management to appoint the Complainant to such roles, regardless of gender.

The Complainant again raises issue with the application of the marking scheme in relation to this competition. In particular, the Complainant took issue with apparent lack of note taking by one of the panel members. It was further submitted that the scant notes taken by this person were solely negative in nature. The Complainant took particular exception to the comment “limited beyond own area” on the Leading Teaching and Learning Section”. In this regard, it is notable that the notes taken by this member are not as detailed as on other occasions. For instance, in the “managing an organisation section” the member simply wrote “skills not evident” without any further explanation as to how he formed this opinion. From the evidence of the panel member, it is apparent that when that particular member is asking questions of the candidate, they would take fewer notes and occasionally leave the area blank. In addition to the same, in relation to this particular panel member, this was the second time he had interviewed the Complainant within a short period of time. In such circumstances the member would have already have heard much of the examples provided by the Complainant and may have had less of a need to take notes. In addition to the same, I note that this member actually increased the overall marks awarded to the Complainant from the previous interview process.

Having regard to the foregoing, I find that the Complainant has not established the primary facts from which a prima facia case of discrimination may be inferred and consequently, this portion of his complaint is deemed to be not well-founded.

In addition to the foregoing allegation, the Complainant has also alleged that he suffered victimisation at the hands of the Respondent. In particular, he submitted that the upon raising these issues with the Respondent, they failed to investigate the same. The Complainant further alleged that the Respondent failed to provide him with certain items and reduced his counselling hours on foot of the complaint.

In this regard “victimisation” for the purposes of the present Act is defined, in Section 74(2) “as adverse treatment of an employee by his or her employer” in retaliation to a complaint of discriminatory treatment.

In the matter of Holden Plant Rentals -v- Sinead Vereker EDA221, the Labour Court held as follows,

“The definition of victimisation contained in that section contains essentially three ingredients. It requires that:

1.       The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2.       The Complainant was subjected to adverse treatment by the Respondent, and,

3.       The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

Regarding the first point, it is uncontroversial that the Complainant raised a complaint regarding alleged discriminatory practices by, at least, 25th June 2019. Having regard to the same it is evidence that the first criterion of the test is satisfied.

Regarding the “adverse treatment” alleged by the Complainant, these fall under two main headings. The Complainant alleged that the Respondent failed to properly investigate his grievances in respect of the substantive issue above, that they failed to provide him with certain materials and that they reduced his counselling hours. It is noted that the latter two of these allegations occurred after the referral of the complaint form. In this regard, the representative for the Complainant agreed that while the same cannot constitute instances of adverse treatment for the purpose of Section 74(2), they can be cited in evidence in support of the earlier complaint.

Regarding the complaint, it is common case the Complainant raised the issues discussed above locally on 25th June 2019. Following his dissatisfaction with the response to the same, he raised a formal grievance in accordance with the Respondent’s internal policies shortly thereafter. During this subsequent grievance meeting, the Complainant raised issue with the manner by which the interviews were conducted. By response, on an almost mantra like basis, the Respondent stated that it was open to the Complainant to appeal the outcome of the interview process if he took issue with the same. On this basis, the Respondent refused to undertake any form of material investigation in respect of the allegations.

The Complainant’s position in relation to the foregoing was consistently set out during the internal process and repeated at the hearing of the matter. The appeal mechanism for such matters is set out in DES Circular 0003/2018.

Section 16 of the same enumerates the following seven grounds for appeal;

1.       Failure to consult staff on the roles and responsibilities as set out in 4.1

2.       Breach of the advertising rules

3.       Non-notification   about   the vacancy to   teachers   on   leave   of   absence/secondment

4.       Lack of gender mix on Interview Board

5.       Incorrect/ incomplete composition of the Interview Board

6.       A computational error in the Interview Board marking sheets which makes a material difference to the outcome

7.       A departure from the agreed selection criteria or marking scheme.

The Complainant’s consistent position is that the nature of his allegation, that the process was tainted by gender-based discrimination, does not fall under any of the headings and would have to be considered under the internal grievance procedure.

Having heard extensive submissions for both parties in relation to this point, I find that the Complainant’s argument in this regard to be meritorious. The grounds of appeal set out in Circular 0003/2018 relate to specific sets of mainly technical circumstances and do not expressly relate to the issues raised by the Complainant. Of the grounds enumerated, point seven, that of a “departure from the agreed selection criteria or marking scheme” is the closest to the Complainant’s issues. However, the Complainant’s position was that his complaint related not to a departure from an agreed scheme or criteria, but that the application of the same was tainted by discrimination.

In contemplation of the foregoing, the Complainant raised his dispute under the terms of the Respondent’s grievance procedure. As set out above, the Respondent refused to deal with the primary grievances insisting that the same be addressed under Circular 0003/2018. At the hearing of the matter, the Respondent referred a clause contained within the grievance procedure entitled “scope of the procedure”. This clause states that,

“The procedure may be invoked by any teacher for the resolution of any grievance against the Manager or the Board of Management of the school in respect of the exercise of any of their responsibilities for the government of the school or against the Principal, Deputy or teachers with delegated responsibility, in respect of their duties and responsibilities for the organisation and conduct of the day-to-day activities in the school”.

The position of the Respondent is that this clause does not, and can not, relate to a panel charged with conducting the recruitment process. Such a panel is, by design, separate to the Board of Management and the internal management of the school. On foot of the same, the Respondent could not investigate the primary issues raised by the Complainant.

The effect of the combined positions adopted by the Complainant and the Respondent created a deeply unsatisfactory situation whereby serious issues raised by the Complainant could not be investigated internally. Indeed, as noted by the Complainant, the first opportunity he had to ventilate these complaints was at hearing of this present matter. 

In applying the matters above to the test enumerated by the Labour Court, Section 74(2) does not contain a suggestive list of matters that may constitute “adverse treatment”. In Employment Equality Law,  Bolger, Bruton, Kimber; 2nd Ed. 2022, it was noted that,

“Whilst it is common for victimisation to take the form of the most detrimental sanction, that of dismissal, the case law demonstrates that victimisation can take many forms.”

In the matter of Konieczny v Business Mobile Security Services Ltd DEC-E2015-048, a Respondent’s failure to properly investigate matters relating to an employee’s conduct were deemed to constitute “adverse treatment” for the purposes of Section 74(2).

Notwithstanding the same, having regard to the evidence adduced, I find that the adverse treatment above did not arise as a result of the Complainant having made a protected act. It is apparent that the Respondent sought to investigate the Complainant’s grievance in line with their interpretation of the various policies in this regard. While the Respondent’s ultimate failure to investigate the grievance was an unsatisfactory outcome, it did not arise as a result of the complaint itself. In this regard, I note that the Respondent’s continued request that the Complainant process the complaint via an alternative process and their timely organisation of the grievance meetings and outcomes.

Having regard to the foregoing, I find that the Complainant has not established that he suffered adverse treatment on foot of having made a protected act and consequently, he did not suffer victimisation within the meaning of the Act.

I find that the Respondent did not discriminate against the Complainant or victimise him. As a consequence of the same, I find that his complaint is not well-founded.

Gender based discrimination, recruitment, competition, victimisation