Complainant

Respondent

Anonymised Parties

A Teacher

Board of Management of a Primary School

Representatives

  In person

Barra Faughnan B.L. instructed by 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-00041944-001

12/01/2021

The Complainant is a teacher who unsuccessfully applied for a Full-Time temporary post in the Respondent primary school. Her complaint is that her non-appointment and the way that her application was treated by the Respondent constituted discrimination on grounds of age and religious belief.

Complainant’s Evidence

Under Oath the Complainant set out her complaint as follows:

1.       The Respondent discriminated against the Complainant on the grounds of age and grounds of religion

2.       The Complainant applied to but was not recruited to a new teaching panel of ten posts, at the Respondent school, despite being highly qualified to take up one of the posts.

3.       The Complainant submits that the ages of those who were appointed shows that older candidates were not considered in equal terms, and therefore were treated adversely, to younger applicants.

4.       During her interview a member of the Respondent interview panel made remarks which also illustrated a bias against Catholic applicants.

5.       The Respondent’s recruitment process did not adhere to the Department of Education Circular 44/2019. The process was unfair, non-transparent and the Respondent applied criteria not within the Circular.

6.       During the Adjudication hearing, evidence provided by the Respondent showed that the Respondent filled the positions with 50% external applicants and 50% internal applicants. This 50/50 weighting is not a criterion that is sanctioned by the Circular and should not have been applied by the Respondent. In effect the Respondent limited the application of external candidates to a pool of 5 instead of a pool of 10. This was never disclosed to the Applicant.  While the application of this additional criterion does not of itself ground the claims of age or religious discrimination, it proves that the recruitment process was defective, non-transparent and was subjected to criteria imposed by the school which had not been sanctioned by the Department of Education.

7.       It is within this improper process, that the Complainant’s allegation of adverse treatment in terms of age and religious discrimination, needs to be considered.

8.       Furthermore, the conduct of the Respondent in refusing to provide the Complainant with the criteria when she asked for it (following the decision not to appoint her) was fundamentally unfair. It was only when she made a series of complaints that the Respondent gave her what they assert were the reasons for her non-appointment (which the Complainant does not accept were the actual reasons.) But even when these ostensible reasons are considered, it is clear that their selection was based on subjective, arbitrary and unfair considerations.

9.       Having believed her interview performance to be impressive and given her level of experience she fully expected to be recruited. The Respondent’s explanation for why she was not successful did not identify the criteria that she had failed to meet, in accordance with the objective criteria that they were obliged to apply.  

10.   Their response to her requests for reasons was they were not required to provide her with the criteria, then they said it was due to Covid. Following a complaint to the diocesan secretary, she was told that the matter had been referred back to the Board of Management. Having asked in August 2020 for the reasons she was not recruited, by the end of October 2020, she was eventually told that the reason she was not recruited was due to her interview performance.

11.   The Complainant says that this showed that this over emphasis on subjective factors e.g. interview performance alone with insufficient emphasis being placed on objective factors, e.g. her teaching experience and skills.

12.   The Complainant says that the Circular 44/2019 criteria were abandoned by the Respondent and wrongful subjective criteria were applied instead.  And when the interview questions that were asked within this subjective exercise are considered, it shows that the subjective biases of the interview panel were determinative.

13.   Given that the comments that were made during the interview evidence a pejorative view of and bias (conscious of unconscious) against older applicants and Catholic applicants the Complainant contends that the real reason she was not recruited was because she is a Catholic and /or because she was an older applicant.

14.   The unjustified over-reliance by the interview panel on the Complainant’s interview performance citing “lack of enthusiasm” or “flat tone” demonstrates an unconscious bias of “not young enough” and the negative comments about central tenets of the Catholic faith show a bias against Catholic applicants.

Religious Discrimination Complaint

During her interview, when she was being asked about books that she has written on religious faith, a member of the panel stated “Years ago it was all about being holy, pure and the white communion dress. Now it is all about being spiritual.” The Complainant considered this comment to be offensive and denigrating to those who hold the sacraments of the Catholic faith to be centrally important to their faith. By the comment, the Complainant was being drawn to agree with the interview panel speaker in a pressurised environment where the Complainant’s responses dictated whether she got the job or not. The Complainant did not agree with this comment. The sacrament of the Eucharist holds central importance in Catholicism and should not have been described in terms that suggested that belief in this sacrament, is not genuine or is old fashioned and should be abandoned in favour of a general, non-specific spiritual belief, as if the latter is more sincere or genuine than the former. She considered the comment to be denigrating because it implied that practising Catholics (for whom the Eucharist is of central importance) are a vestigial cohort of society who live in the past whereas the majority of society no longer believes in the sacraments and this type of non-specific spiritualism is preferable.

Age Discrimination Complaint

When the ages of those who were recruited is considered, it is clear that more applicants in their 20’s were recruited than people who were in their 30s or older. This bias against recruitment of older applicants is endemic in teaching and that is what happened here.

Cross-Examination of the Complainant

The Complainant was cross examined as follows:

RE: Age

1.       The Complainant was 37 when she applied for the post. The Complainant has not provided ages of any of the candidates who were successful and yet, without this evidence, she is unable to support her contention that she was discriminated on the basis of her age.

To this the Complainant answered that she knew the approximate ages of the successful candidates and they were mainly in their 20s.

2.       The Complainant has made assumptions which are erroneous. She did not take into account that, the majority of applicants for the panel were in their 20s, in which case the pool from which the short list was drawn, had a greater proportion of younger applicants in it anyway.   It also did not take into account that despite this, of those candidates who were shortlisted and interviewed, a significant proportion were either the Complainant’s age (30’s) or older. If anything, older candidates (in their 30s) had a higher representation within the shortlisted cohort than those who were younger given the age profile of the applicants overall.  But most significantly, when the actual ages of the successful applicants are considered (statistical data which the Complainant did not have, did not seek to obtain and does not rely upon in her complaint) four of the ten selected were aged 45, 33, 36 and 35 which means that they were either the Complainant’s age or older.  This flies in the face of the Complainant’s argument that older candidates were excluded. Not only were older candidates not excluded, they were successful in being appointed.  The Complainant has failed to prove adverse treatment, on the basis of her age.

To this the Complainant answered that the teacher in her forties, who was appointed and was older than her was more qualified than she was. As such was an outlier, so should not be taken into account. The Complainant was placed at number 22. No one had explained to her why she was placed this low down on the panel. Given her teaching experience, she should have been recruited. The explanation of “non-enthusiastic or flat” performance was a subjective criterion which is an unconscious bias for old. The process was tainted by the abandonment of the Dept Circular 44/2019 criteria that should have been applied but wasn’t and had it been applied, she should have been selected. There was an over-emphasis on interview performance. Insufficient weighting was given to teaching experience and the decision to narrow the selection criteria further, in a way that wasn’t sanctioned by the Department of Education, whereby external candidates were only considered for 5 of the ten posts, gave rise to further subjectivity and that is where the two biases (that of age and that of religious belief) played a determinative and negative influence.

3.       The Complainant’s interview responses are recorded as being “flat.” This is not about age and it is incorrect for the Complainant to equate a description of a person being “flat” or non-enthusiastic as necessarily meaning a person who is older. That is entirely rejected by the Respondent.  Interview performance is an important part of any recruitment. It is how the decision makers can see if the skills and experience on paper can be translated into enthusiastic teaching. Primary education needs enthusiastic teaching. If performance at interview is not important, why have an interview at all?

To this the Complainant said: “If I do my driving test, I don’t want to be told that I wasn’t enthusiastic enough. I am very enthusiastic with my students, I don’t feel that how I enthuse with children needs to be replicated when I’m talking to adults at an interview.”  The Complainant said that the questions that were asked of her did not reflect the competencies that were required by the Department of Education Circular 44/2019. Although while the Complainant believes that the panel’s comments of “her vast experience” (which she took to mean older and over-qualified) were factors in her not being recruited to the panel, she accepts that she did not provide a comparator to prove age-based discrimination.

4.       On the Respondent’s data which became available during the Adjudication process, when the percentage success rate was considered, it was put to her that if an applicant was in their 40s, they stood at 20% chance of being selected, if they were in their 30s, they stood a 30% chance and if they were in their 20s, they stood a 50% chance of being selected, which the Complainant accepted. The Respondent submitted that this data proved that there no basis for claiming that age-based discrimination influenced the Respondent’s recruitment decision making. 

Religion

5.       The Complainant accepted that the first time that religious discrimination was ever mentioned was in her WRC complaint form and that no reference to religious based discrimination was referred to in the correspondence between the Complainant and Respondents, before she issued her complaint.

6.       The comment was an attempt at a conversation opener. It was raised in the context of discussing her achievements and skills. It is not capable of meaning that which is contended by the Complainant.

7.       The basis of the religious discrimination claim is unclear, in circumstances where the Complainant’s religious belief or religion has not been clearly identified. The Complainant’s comparator was identified until day 2. Her comparator was a candidate who was successful in being appointed and who is Catholic. This suggests that the Complainant is relying on being other than a Catholic and yet the comments that she asserts were derogatory were, she argued, offensive to Catholics. Also, her choice of comparator fails to treat like with like. For instance, no attempt has been made to show how the comparator was rated on interview performance.

To this the Complainant confirmed that she was a published author on faith, spirituality, self-understanding and self-insight. She did not accept that the comment arose from her being an author when the comment “Years ago it was all about being holy, pure and the white communion dress. Now it is all about being spiritual” was made. She believed that she should not have been asked about her religious belief at all. That is an improper question in an interview. She believed that the comment which was posed a question rather than a comment was made to identify what her religious beliefs were. Which was improper. She could have been asked about the curriculum for religion in primary schools, yes, but she should not have been asked a question designed to draw out her own personal religious views.

8.       She was asked was the comment not more reflective of the speaker’s own opinion, about how Irish society has changed over the years, as opposed to being critical of the Complainant’s views.  

To this the Complainant replied that it was a question, that demanded a response. It was a comment designed to draw out her views and that was inappropriate given the power relationship involved.

9.       She was asked on what basis did she say that this comment was the reason why she did not get the job. To this she replied, that the comment disparaged Holy Communion, which is a sacrament within the Catholic faith and the Complainant was invited by the panellist to agree with that comment. It was offensive and was entirely inappropriate and she expects that she was the only person who was exposed to the question, because of her books, but she should not have been singled out like that. The assumption behind the comment was that belief in the sacraments is unthinking or old-fashioned or antithetic to being spiritual, an assumption that the Complainant found offensive. It was inappropriate that she was asked.

Cross Examination Ended

Replying Oral Submissions to the Respondent’s application that that no Prima Facie case has been proven, the Complainant submitted the following:

In relation to the age ground, the Respondent is cherry picking from the data to suit their case.

The defects and the application of non-disclosed criteria, within the Respondent’s recruitment were laid bare during the Adjudication hearing. Department of Education Circular 44/2017 was not applied by the Respondent and the Respondent instead applied subjective criteria that do not stand up to scrutiny.

The comment about religious belief was a question that should not have been asked during the interview.

Interview performance became the sole determining factor and that should not have been.

At the conclusion of the Complainant’s evidence, the Respondent representative made an application that the Complainant had not proven facts from which it could be found that the reasons why she was not appointed to the post was either because of her age or because of her religious beliefs.

Application that no Prima Facie case is proven: Oral Submissions

AGE: With respect to the Age Discrimination complaint, four of the ten appointments were either the same age of the Complainant or older.

RELIGION: A comment made by one of the interviewers during the interview was made to open a discussion with the Complainant and to discuss her achievements and skills. The Complainant was entitled to either agree with it or disagree with it. There is no evidence to suggest that the answer that she gave, which was non-committal in any event, was a reason why she did not get the job. The comment was not intended to cause an offence.  

Department Circular 44/2019: With respect to the assertion that the Department criteria were not applied or that the Respondent applied criteria in addition to those contained within the Circular this is denied and furthermore even if this were true (which is denied) this does not provide evidence which proves that discrimination occurred.

The Complainant might be unhappy with the result, she might be unhappy with how she was dealt with, she might be unhappy with the experience, she might be able to identify issues in the recruitment process that were not disclosed to the applicants, she might have wished to bring  an Industrial Relations grievance with respect to the Respondent’s procedures, she might feel that the Department of Education Circular criteria were not properly applied (all of which is denied) but unless she can prove facts from which the Adjudicator can find that either age or religious based discrimination occurred, her complaint cannot succeed.

The jurisdiction of the WRC is to determine if equality rights have been breached and there is no evidence to support the Complainants contention that the reason that she did not get the job was because either of her age or her religion.

The authorities are clear and consistent, if the Complainant’s evidence does not disclose primary facts from which discrimination may be inferred, the complaints may not succeed.

The Complainant’s evidence with respect to religious based discrimination changed between the first and second hearing dates. On the first date she argued it was because she was Catholic. On the second day she contended that it was because she was (incorrectly) perceived and treated by the Respondent as being non-Catholic. On neither basis can discrimination be found merely as a result of the comment that was made, which was innocuous.

During the Adjudication, her complaints of discrimination evolved from discrimination complaints into complaints about poor procedures.

The Complainant thought that her experience and skills on paper alone, should have determined whether she got the role or not, as if interview performance was not a part of the process. But interviews were part of the process (as indeed Circular 44/2019 sets out) and the Complainant, as experienced as he is and as skilled as she is, simply did not perform well at the interview. This is something that the Respondent was entitled to take into account when it decided not to recruit her.

In an Equality complaint the test to be applied whether the Complainant has adduced facts from which a finding of discrimination – on religion or on age grounds – may be found. This test, that there is prima facie evidence that discrimination has occurred, must first be met by a Complainant.

It is my view that the Complainant has not satisfied this test.  

Recruitment Procedures

While I am satisfied that the Complainant has shown that some of the criteria, applied by the Respondent were not identified to the Complainant before the recruitment process or afterwards, even up until the Adjudication hearing commenced, this is not the complaint that I have been asked to adjudicate on and as such, is not one that the Respondent is required to defend.

What is clear to me is that, regardless of whether the correct procedures were applied by the Respondent in this recruitment or whether she was treated fairly following her non-appointment, in respect to whether facts have been proven from which discrimination, either on ground (religion or age) may be found, I find that that the Complainant’s evidence, falls far short of proving that any discrimination occurred.

Interviews

I do not accept the Complainant’s contention that her interview performance should not have influenced the result. Or that her skills on paper alone should have been sufficient to get her the job. I cannot say if the weight that was allocated to the interview part of the process was greater than it should have been, no evidence has been put before me to allow me to make such a finding and besides that would not be relevant to the complaints that are before me. Interviews allow a job applicant demonstrate in a practical way, that she possesses the skills that are necessary for a job. The Complainant knew that an interview was part of the process, indeed the Complainant has sat on interview panels herself, so I do not accept that her performance at interview was not a relevant factor for Respondent to take into account.

Age

In respect of age, no comparator has been identified by the Complainant and the statistical evidence that was put to the Complainant in cross examination indicated that, of the ten candidates who were recruited, three were either the same age range of the Complainant and one candidate was in fact older. This data undermines the Complainant’s age discrimination complaint. While the Complainant criticises the Respondent for cherry-picking, her point (that the successful candidate who was older than the Complainant should be excluded from the statistical analysis because she is more highly qualified) is cherry picking and this is not the correct way to evidence age discrimination, the onus of which is on the Complainant.

Religion

In respect of religious discrimination, no appropriate comparator has been identified by the Complainant.

One challenge in this Adjudication has been that the nature of this complaint evolved between the first and second hearing dates. On the first hearing day  it was that the Complainant was discriminated against because she was Catholic. On the second day (following my direction that she needed to identify a comparator) it was that she was discriminated against on the basis that she was non-Catholic because the Respondent had incorrectly assumed this to be so. The comparator she selected was Catholic.

The Complainant’s religious beliefs (upon which she contends she was discriminated against) have not been made clear. I understood initially it was that she was Catholic however her choice of comparator being also Catholic, created some confusion. 

It seems to me that her complaint is either that she was discriminated because she was Catholic (but for which she did not provide a non-Catholic comparator) or it was that she was discriminated against for being non-Catholic, even though her evidence about the comment that was made, was offensive to Catholics, does not support that.  

In any event, with respect to the comment that was made by the interview panellist, I am not satisfied that this comment or the Complainant’s response to it, led to the Complainant being adversely treated by not being appointed to the teaching panel. The making of the comment of itself, even if it was posed as a question, does not, of itself, constitute adverse treatment and the Complainant does not seek to argue that the panel did not have similar discussions or make similar comments to the other applicants.

I do accept that the Complainant may have been offended by the comment. She considered the comment to denigrate the sacrament of Holy Communion and while all sacraments are central to the Catholic faith, I understand that the Eucharist is fundamental.  I accept also that for the speaker to make this comment to the Complainant was likely said in a way which expected a response. I accept that this may have put the Complainant in a position where she felt obliged to disclose either if her religious beliefs were the same as the speaker’s or if they were different and I accept that this may have been uncomfortable for the Complainant, given that her views were not the same as the speaker and given that she was being interviewed, by the comment maker, for a job.

However, more fundamentally given that the Complainant’s response to the comment was either an acceptance, a demurral or a non-response (the Complainant did not contest the comment nor reveal her religious belief) this leads me to conclude that there is no basis upon which the Complainant can assert that she was treated adversely as a result of her religious belief. If the comment had been designed to get the Complainant to disclose her religion, she did not do that. And as her religious belief was not identified during the interview and because no appropriate comparator has been identified I find no evidential basis to support her contention that the reason she was not selected for the panel was due to her religious belief.

This is a discrimination complaint. It is not a decision on whether the Complainant was offended by comments that were made during the interview and it is not a decision on whether the recruitment procedures that were followed by the Respondent were appropriate or did not follow Department of Education Circular 44/2019.

I am satisfied that the Complainant has not proven facts from which a finding of discrimination on the grounds of age or religion may be found and I am satisfied therefore that the Complainant was not discriminated against on either prohibited ground.

I am satisfied therefore that the Complainant was not discriminated against on grounds of age or religion.

Discrimination - Age - Religion - Teacher