Complainant

Respondent

Anonymised Parties

A Teacher

A School

Representatives

Maria McHenry & TJ Clare

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-00024462-001

20/12/2018

The complainant was employed by the respondent as a National School Teacher from the 5th.Jan. 2015 to the 31st.Aug.2018.In her complaint form which was received by the WRC on the 20.12.2018, the complainant asserted that she was discriminated by the respondent by reason of her gender, disability and family status. The complainant’s employment history and qualifications was set out. It was submitted that the complainant competed for a job interview with the respondent while on maternity leave in July 2018, but she was unsuccessful. It was submitted that she was denied appointment to the position as a result of discriminatory treatment due to her gender, her family circumstances and her disability. The respondent denied all allegations of discriminatory treatment on the grounds of gender, family status and disability and asserted that no evidence had been advanced to support the complaints.

A detailed submission was furnished by the INTO on the 23.03.2021 and is summarised below:

It was submitted that the respondent failed to give any of the 4 jobs or alternatively promote the complainant to the four posts   that had been the subject of the July 2018 competition to the complainant – the positions consisted of one fulltime post, a part time post and 2 maternity positions. It was submitted that the non-appointment was unlawful discrimination on one or more grounds of gender, disability and family status.

The union set out a detailed chronology of the complainant’s career and experience and specifically referenced the claimant’s employment with the respondent school and a number of other schools in the local area. It described her relationship with the stakeholders of the school as positive and constructive. A detailed account of the claimant’s medical history was presented – the complainant had suffered severe post-natal depression necessitating significant periods of sick leave and absence from work. A summary of the claimant’s engagement with Medmark was presented.

According to the union, the complainant had to prompt the Principal on 4 occasions during 2018  to correct and submit her records for maternity benefit.

The union charted the recruitment process for the 4 positions – 6 candidates presented for interview – 4 of whom were internal candidates. It was submitted that the Principal did not observe existing custom and practise in the manner in which candidates were notified of the outcome of the interviews – the complainant heard of some results from a colleague. The complainant was notified by phone on the 17th.July 2018 that she had been unsuccessful in all 4 applications. It was submitted that the delayed notification was indicative of a lack of transparency in the selection process particularly given that one candidate was notified of her appointment within 2 days of finalisation of the interview. It was submitted that the complainant was not given feedback on the interview and that this fell short of good employment practises. It was submitted that the complainant was the only internal candidate who was married, with children, on maternity leave, suffering from a disability and not successful in securing one of the 4 positions. It was submitted that the respondent’s failure to produce handwritten notes for each individual candidate demonstrated a lack of transparency by the respondent n their conduct of the recruitment process. It was advanced that the only documents produced by the respondent were a copy of the interview questions asked of each candidate.

It was contended that the weighting of interview scores in the instant competition differed from that that applied when the complainant competed in 2016, 207 and 2018.It was argued that the change in the weighting resulted in the complainant receiving 8 fewer marks than what she would have received in her previous 3 interviews. It was argued that the irrational and anomalous change in the marking process facilitated the respondent in discriminating against the complainant. The union took issue with the assessment criteria – contending that the criterion of general assessment was opaque and lacked objectivity while the complainant’s score for experience was underscored given her range and length of experience. It was contended that the respondent had a predetermined outcome of the complainant’s interview to ensure that “criteria befitting to her were not weighted as highly as criteria befitting to candidates other than the complainant.” A detailed breakdown of the criteria and its application to the candidate was contained in the submission.

The process was compared with the complainant’s 2017 interview. It was submitted that the only difference between the 2017 and 2018 interview process was that the complainant had informed the Principal that she was pregnant in Nov. 2017 – the complainant was absent due to pregnancy related illness and subsequently went on maternity leave. It was submitted that but for the complainant’s pregnancy during 2017-2018, illness absences and subsequent maternity leave, the complainant would have been successful in securing one of the four roles available in July 2018.

The union invoked the following authority  in support of their allegations of discriminatory treatment :-O’Higgins v UCD ([2013]ELR 146).It was submitted that given the absence of sufficient notes or explanation for the underscoring of the complainant in the interview , the test in O Higgins was easily met .It was submitted that the complainant had demonstrated that there was no discernible justification – on the basis of qualifications or experience – for the appointment of the comparators over the complainant , save for the candidates not being pregnant /on maternity leave at the time of the interview or the date of the commencement of the contract , having a different family status and not having a disability.

The union referenced Section 6(2A) of the Act and submitted that the respondent and Principal were aware that the complainant would continue to be on maternity leave until Nov.10.IT was submitted that hence less favourable treatment by the respondent in the 2018 interview process was related to the complainant’s status. – which should have been protected. The union invoked the provisions of Caroline Foster -v- The Office of the Revenue Commissioners (DEC-E2016-115), Floers by Kay (EDA2/2009) and Case C-438/99, Meelgar v Ayuntamiento de los Barros [2001] ECR 1-6915 in support of their contention that ignoring the protected status of maternity leave raises a prima facie case of discrimination on the gender ground.

In support of their allegation of discrimination based on family status the union referenced A Support Pharmacist -v- A Pharmacy Chain ADJ-00022879 and An Employee v A Health Company ADJ-00017070.

It was submitted that the complainant’s condition – ie depression falls within the statutory definition of disability. While it was acknowledged that the complainant had never sought any reasonable accommodation from the respondent with respect to her disability, it was asserted that the respondent viewed her job application through a discriminatory lens which contaminated the decision process  and that  the neglect by the respondent to  ascertain the detail of the complainant’s disability emphasised the inherent bias towards the complainant and her disability. The following cases were invoked in support of the contention of discrimination on the grounds of disability – A Health & Fitness Club -v- A Worker (ED037); Humphrey’s v Westwood Fitness Club [2004]E.L.R296;A Worker v A Manufacturing Company (ADJ-00000557) and Stobart (Ireland)Ltd and Richard Beashel.

Further information was sought from the respondent at the first hearing on the 31st.March 2021 in relation to the applications submitted and the questions asked at interview. The redacted documents were furnished to the WRC and the complainant’s representatives on the 22nd.April 2021 and the union made a responding submission on the 23/08/2021which is summarised below.

It was submitted that a review of the 6 applications for the 4 positions demonstrated that the complainant had the most experience of teaching and teaching in a Gaelscoil in comparison to the other candidates.

It was submitted that the complainant was one of 3 candidates who had studied at Masters level and had obtained a Masters in Language teaching methodologies.

It was submitted that the complainant was the only candidate with experience of a post of responsibility.

It was submitted that the complainant was one of 2 candidates who grew up speaking Irish and was educated in a Gaelscoil.

It was advanced that given the absence of any explanation for the underscoring of the complainant in the 2018 interview , the change in weighting of the interview and the absence of reasons as to why other  candidates scored higher , the test in O’Higgns v UCD was easily met .It was submitted that there was no discernible justification  - on the basis of qualifications and experience – of the appointment of the comparators over the complainant “ save for the candidates not being pregnant /on maternity leave at the time of the interview or the date of the commencement of the contract , having a different family status , and not having a disability”.

It was contended that the absence of interview notes from the competition raised an inference of discrimination. The inference it was contended was based on the complainant having superior experience in teaching and being one of 3 candidates qualified to a Masters Level albeit scoring lower than the 4 successful candidates when it came to the interviews.

The union invoked the Labour Court Determination EDA039 with respect to the absence of interview notes where the Court found that the absence of contemporaneous notes of the interview and the manner in which the marking credited to candidates was arrived at , made it difficult for the respondent to rebut the presumption of unlawful discrimination which arises by operation of law.The provisions of Burke DEC-E-2003-014 and EDA0712 were also invoked in support of the unions arguments regarding the absence of notes.

The union also referenced Nevins, Murphy, Flood v Portroe Stevedores Ltd [2005] 16E.L.R. 282 with respect to the motive for an impugned decision “may be conscious or subconscious “and quoted the Court’s warning that “the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive in the absence of independent corroboration must be approached with caution”.

It was contended by the union that O’Higgins v UCD was relevant to the instant case as there was no record by the Interview Panel of how the marks were awarded. It was argued that this absence of transparency was also relevant to their reliance on the Daughters of Charity v Martha McGinn case EDA039   and the South Eastern Health Board v Brigid Burke case DEC-E-2003-014. It was submitted that the awarding of higher marks to 4 candidates with less experience and qualifications than the complainant flew in the face of reason. The union referenced the results of the other competitions where it was submitted that there was inconsistency between the marks awarded to the complainant and her competitors.

The union reiterated their contention that the incorrect dates submitted by the Principal for her Maternity Payment Benefits  whereby her entitlements from the DES and DSP were conflated , was evidence of a predetermined decision made by the Principal that the complainant would no longer be employed beyond the 31st.August 2018.The union disputed the documents submitted by the respondent with respect to the influence of the additional weighting on the outcome of the interview process – it was submitted that the union did not agree with the respondent’s rationale  or with the retrospective application of the marking scheme. It was submitted that SR2 was designed to create a marking scheme that suited the respondent’s case. It was argued that was not possible to argue which domain a question was under and it was submitted that the respondent was seeking to create new evidence that did not exist at the time of the competition.

Summary of Pertinent Evidence of Complainant

In her direct evidence the complainant set out her career history and summarised her employment history with the respondent. She charted the exchanged correspondence with the Principal on her Maternity leave Benefit application and stated that she had to follow up with texts to remind him to submit the paperwork to the Dept. She was worried at the time as she had been in and out of hospital and the Principal had completed an end date of 31st.Aug. 2018 and she had used the 10th.Nov. 2018 as her end date. She could not understand the Principal’s delay in correcting the paperwork and she asserted that the paperwork that had to be returned to the DSP was separate and different to the information required by the Dept. of Education.The complainant said she had correspondence from the DSP stating the date should be 10th.Nov.2018 – such a document was not submitted .

The complainant referenced her bouts of pregnancy related illness as well as periods of sick leaving owing to depression. She stated that when the 4 jobs were advertised she applied; she thought it was a formality and she was bound to get one of the 4 posts – she had a good track record with the school. She enjoyed working there. She said she performed very well at interview and she was happy and content with the process. She said the Chairperson of the Selection Panel congratulated her on the birth of her daughter. She said the interview was no different to any others she had done – it lasted 20-25 minutes; she was a native Irish speaker and it was a case of waiting for a phone call. She was a bit uneasy when she did not hear back – she asked the Principal and he replied that things were complicated. An SNA colleague texted her to say 2 of the 4 positions had been filled. She eventually got a call from the Principal on the 16th.July to tell her that they could not offer anything at present. She was asked if she had applied for jobs in other schools and it was suggested to her that maybe she should have applied for other jobs.

The witness said she felt hurt and   let down- she said this was not the blow she needed. She had 16years teaching experience with no complaints and she felt it did not add up. It did not make sense and she wondered how she could not get one of the jobs. She thought it may have been her sick leave and her depression or perhaps she would be an inconvenience for the Principal as she was on maternity leave to the 11th.Nov. 2018.The complainant said she felt worthless and when asked how she would assess her interview, she replied that she did a fantastic interview. She surmised that perhaps the Principal wanted a fresh start in September. It might be easier to have someone new. The witness said she asked for feedback – she texted the Principal on the 17th.July – she told him she was heartbroken and she told him she could not believe it. He replied “That’s how things panned out “– she was not on the list. She suggested he – the Principal – wanted her out of there. She had a number of successful interviews – she wondered was it because of her mental health issues. She asked the Principal about post-natal depression and pregnancy related illness and he replied none of those issues were a factor.

The witness said she was on the Dept. of Education’s payroll up to the 31st.August and in receipt of Maternity Benefit of €240 per week to the 10th.November. She had to get a moratorium on her mortgage and approach the Vincent de Paul  for help. The complainant said she was ashamed. When asked if she had applied for other jobs the complainant said she thought it was in the bag. The complainant said she knew there was an injustice. In January 2019 she applied for a job in Carrick on Shannon and was successful. It was still fresh in her mind that she was now a job seeker and approaching the CWO was not easy. The complainant said she felt hard done by. The complainant said she did not know how she had been marked down.

Under cross examination, the respondent’s representative referenced the number of interviews the complainant had competed for and suggested that her history indicated that she attended for 6 interviews – she got 3 and failed 3.The complainant replied that she was still offered a position in one of the interviews in which she had been unsuccessful. The representative summarised the various competitions and referenced the complainant’s employment record with the school. It was put to the claimant that when the Principal referred to the 31st.August on her Maternity Benefit application , that he had made a mistake . The complainant questioned why it took so long to complete the form and looking back asserted it had been done for a reason – she suggested she was not wanted and had been a burden .The INTO advice re maternity benefit was reiterated by the respondent’s representative and the complainant replied that the DSP did not agree with the Principal’s interpretation.

The complainant said the issues of ill health and post natal depression were out of her control – she had received support from pupils and some  staff .The Principal knew she had depression and this was a sensitive issue. The complainant said she enjoyed her time at the school. She said she thought the interview was a formality  and that she was bound to get one of the positions. She said the interview was no different to previous interviews; she was asked questions and she responded to the best of her ability. It was put to the complainant that it was an open interview and everyone should be given a fair crack of the whip; there were criteria set down and a process. The claimant was questioned as to why she would consider the process as a formality – the complainant responded that she took it for granted she would get one of the 4 positions – she still believed it was related to her maternity leave .It was put to her that she took it for granted and the complainant replied  -No I am very professional. She stated that she was very hopeful. It was put to the complainant that the Selection Board would give evidence to say that  her performance  was not up to scratch and that she came in expecting the job. The complainant replied that she went in very hopeful and did her best .She prepared to the best of her ability .It was suggested that other candidates performed better on the day- she replied that she had seen the score sheets and that she had been marked down. She said when she looked at the application forms from other candidates , there were a large amount of errors in Irish. It was put to her that she had scored very high if not highest in Irish .It was put to her that it was as if she assumed she would get the job.

The witness confirmed that the Chairperson had congratulated her on the birth of her daughter. She confirmed that she was told by a colleague SNA that  2 of the  4 jobs had been filled .The witness said that when the Principal  asked her if she had applied for other jobs she interpreted it as he did not want her there .The respondent’s representative asserted that the Principal  asked the question out of concern for the complainant. It was put to the complainant that she thought maternity leave was an inconvenience for the school – she replied yes because I was not going to be back until the 11th.November  ; that it would be inconvenient and that she might suffer from post natal depression and might take other leave. The complainant said it was easier not to give her a position.

The complainant said the process was unfair ; she reflected on the interview , it was known she was on maternity leave  and they were not going to give her the job because she might have been a burden .She said she was the strongest candidate on paper and the most suitable candidate but she was underestimated in the scoring ; she would undertake the CPD .The outcome affected her mental health .The complainant asserted that she should have got one of the posts – the process was unfair and prejudiced – she would still have been on maternity leave and the easiest thing was to let her go.

The complainant enquired why she had failed and asserted that she was not given an explanation – it was put to her that she had not sought feedback. The complainant asserted that she looked for feedback from the Principal but did not get it.She later confirmed that she did not pursue feedback after texting the Principal . The complainant said she asked was it because of her mental health or pregnancy related illness , the Principal replied they were not considered. It was put to the complainant that when the union contacted the Chairperson of the school on the 19th and 20th.July the only issue raised was the complainant’s entitlement to a CID. The union did not raise the issue of discriminatory treatment on the grounds of disability / maternity leave .The complainant indicated that she thought her service would bring her closer to a CID.

It as put to the witness that she did not apply for any further jobs between July 2018 and January2019.The claimant said she was fit for work from the 10th.Nov. onwards. She confirmed that she did not apply for another job until Jan 2019.It was put to the complainant that when the Chair congratulated her on the birth of her daughter – he had made no reference to family status or disability. It was put to her that her concern was the outcome of the interview process ; that she had  accepted that the positions had to be advertised ; that there had to be an open competition ; that there had to be agreed criteria .It was put to her that she was asked the same questions as all of the other candidates – she replied she did not know ; that she was not in a position to dispute that .The complainant asserted that she performed well at interview ; that the scores did not reflect a fair process and that she was a very suitable candidate for one of the 4 positions. It was put to the complainant that she had no difficulty with the process until she was notified of the outcome from her colleague SNA.

Th witness said the outcome  of the interview was heart breaking for her .It was on her mind that mental health and maternity issues had a bearing on the outcome. The witness asserted that the marks did not reflect the interview she did on the 3rd.July 2018.The complainant said the whole process had a huge effect on her , she questioned herself as a teacher – it was a huge blow and she wondered if she would go back to teaching. She plucked up the courage and started to reapply in Jan 2019.She did  not apply earlier as it was a huge blow to  her  when she did not get any of the 4 jobs .The complainant again recounted her grievance re the Maternity Benefit application – the Principal had told her the 31st.August was the correct date and she then got a call from the DSP.The respondent’s representative asserted that the 31st.August  was the correct date in accordance with the provisions of the Maternity Protection Act.

The union reiterated that it was within the knowledge of the Principal  and  in advance of the interview process that the complainant could not take up a position on the 1st.September.

 Summation – on behalf of the Complainant

In summation, we respectfully submit that via our submissions on  the complainant’s  behalf and adduced via direct verbal evidence and cross-questioning of witnesses, we have established   the complaint to be well-founded.

As we set out by way of written submission to the WRC, the complainant  submits that the Respondent unlawfully discriminated against her on the grounds of gender, disability and family status contrary to Sections 6(2)(a), (c) and (g) respectively of the Employment Equality Acts 1998-2015.

We submit that a prima facie case has been established and that the non-appointment of the complainant  to any of the four vacant positions, in the summer of 2018, was unlawful discrimination on one or more of the grounds of gender, disability and family status.

- The complainant  was the most experienced teacher who applied to the four positions available on 3 July 2018 and had a strong academic background, amongst three candidates who had achieved a Masters’ qualification

- She is dedicated to her profession as a teacher and is passionate about the Irish language

- Our member enjoyed a positive history working in the school, there were no parental complaints procedures or disciplinary procedures invoked against her

We have outlined evidence to support the complainant’s  complaint.

- Evidence was provided by where the Respondent altered the Maternity Leave End Date on her Maternity Benefit Form, from 10/11/2018 to 31/8/2018 which have  been submitted to be an indication that it was not intended that her employment would go beyond the end of August 2018.

- There were no notes taken by the interview panel to substantiate a fair process or the overall marks awarded by individual assessors

- We have submitted that the Interview Panel under-marked  the complainant  at interview on 3rd July 2018, specifically in the areas of “General Assessment” and “Suitability for the Job” and “Relevant Experience”.

- We have submitted that the criteria, questions and resulting maximum markings possible were opaque at very best in all domains for the summer 2018 processes. The Respondent has submitted information some 3 and half years after the fact to purport to justify or provide a rationale for the change in marking scheme and to which domain questions would, should or could be attributed to which we say was to the complainant’s detriment.

- For example, due to the re-weighting cited by the Respondent, marks were re-allocated away from “Relevant Experience” to “Suitability for the Job”

- It was our submission that “Relevant Experience” was a domain that the complinanat would have scored positively in, given the passage of time from 2017-2018 and that her mental health history, her most recent pregnancy were considered to be aspects of “Suitability for the Post”.

 During our submissions, we brought attention to the change of the marking scheme which we say to be indicative evidence of a process not to allocate any of the four posts to the complainant.

- What was the main objective difference between 2017 and 2018? We say that the objective difference was that the complainant  had informed the Respondent that she was pregnant in November 2017 and gave birth to a daughter in May 2018. The Respondent therefore knew, during the competition process of summer 2018, that she would be on maternity leave after the 1st August 2018. The Respondent also knew of the complainant’s history of postnatal depression after the birth of her first child and we have submitted that this would have been a cause for worry and have a negative impact on the marks awarded to her, as such postnatal difficulties could reoccur following her second child’s birth in 2018.

- We have submitted that the Respondent did not wish to have the difficulty of identifying and sourcing a substitute teacher, on a specified purpose basis, to cover the absence of  the complainant who herself may have been a specified purpose contracted teacher and she would not be in position to take any of the four roles on 1st September 2018.

For all of the above and with reference to our previous submissions both verbal and written, we finally wish to reiterate our submission that a prima facie case of discrimination on the one or more of the grounds has been established and that the claimant’s complaint is well-founded.

On a closing note, on our own and on the complainant’ s  behalf   we would like to thank you Madam Adjudicator for the manner in which you have conducted this hearing, remotely and at times in unprecedented times.

The respondent ‘s representative submitted as follows:

The complainant had worked in the school pursuant to a number of fixed term contracts .The respondent denies that it discriminated against the complainant on any of the alleged grounds or any other grounds and submitted that it had at all times acted in accordance with its obligations and had always treated the complainant in a fair manner. The respondent’s representative charted the complainants employment history with the school including time spent working with a cluster of other schools including the respondent’s school. The different offers of employment made to the complainant were set out in chronological order .It  was submitted that the claimant’s failure to secure a position following the July 2018 interview that led to the current claim. It was submitted that because all 4 positions arising for the 2018-2019 year exceeded 24 calendar weeks , the school Board was obliged to advertise the positions and comply with national procedures for the appointment of Primary School Teachers.It was submitted that the competitions must be run in a fair and transparent manner and each candidate must be assessed on their own merits following interview.It was asserted that it would be unfair for current incumbents to be shown favour.

It was submitted that the selection board conducted the process in accordance with national recruitment procedures and in determining the criteria for assessment decided to adopt the criteria used in previous competitions. It was submitted that in response to a request from the Patron Body to ask a question regarding the willingness of candidates to undertake CPD in Irish if requested , the Board made some amendments to the weighting of different elements .It was submitted that “ this was done as the majority of the questions asked at interview related to the 2 criteria where the increased weighting was given…It was felt that this created a more balanced weighting for the assessment of candidates and it has continued to use the same weighting since.”

It was submitted that each member of the Selection Board completed his/her own individual marking sheet and gave it to the Chairperson of the Board on completion of the interviews. The individual marks were added and a final mark for each applicant produced a ranking of applicants deemed suitable. The complainant ranked 5th.It was submitted that it was only when each of the 4 highest ranking candidates had selected their post in accordance with the procedure set out  and had returned their written acceptance of the post that unsuccessful candidates could be informed of the outcome. It was denied that the complainant had sought feedback from the Principal. It was asserted that she had looked for the phone number of the Chairperson but did not make contact with him.

It was submitted that the INTO by way of letter and a telephone conversation in late July  had raised the matter of the complainant’s entitlement to a Contract of Indefinite Duration. The ensuing correspondence between the parties was submitted into evidence. It was submitted that there was no further  communication from the complainant until the WRC notified the respondent of the within proceedings in January 2019.

The representative invoked the provisions of A Worker v Southern Health Board 92010) EL.R. and Graham Anthony And Company Ltd v Margetts EDA038 on the matter of establishing a prima facie case and contended that the mere fact that a complainant fell within one of the discriminatory grounds was not sufficient to establish a claim of discrimination. O’Halloran v Galway City Partnership EDA 077 was invoked to highlight the Labour Court determination that the “qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. It was submitted that the case of Eleanor O’Higgins v The Labour Court and UCD (2013 No 21 MCA)- as referenced by the complainant’s trade union - regarding a prima facie case being established can be distinguished from the instant case. It was submitted that Ms.O Higgins was not in competition with other applicants whereas the complainant in this case was  competing with other teachers all of whom were appropriately qualified to fill the post. It was submitted that the gender balance in the instant case was appropriate and that the Selection Board marked the individual candidates so there was a transparent record of how the Selection Board ultimately arrived at its decision.

The case of Kathleen Moore v Waterford Institute of Technology EDA 077 was invoked to emphasise that the Labour Court had held that it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers.

It was contended that the complainant had failed to produce any evidence to support her assertion that the fact that she scored lower than the 4 successful candidates was evidence that she was discriminated against on the grounds of Gender, Family Status and Disability.

It was submitted that all 3 members of the Interview Panel would give evidence to attest that the complainant’s gender , family status or disability was not considered in any way during the competitive process.

In response to the submission by the union that the successful candidates were female , unmarried , without child and not known to be pregnant , the respondent asserted that neither the application for the posts or the questions posed at interview could have disclosed in any way whether the candidates were or were not married , had or had not children and were or were not pregnant.

It was submitted that of the four employees called to interview , 2 were successful and 2 were unsuccessful and that consequently this rebutted the presumption of discrimination on the gender ground if such a prima facie case had been found.

It was contended that the respondent never considered the issue of pregnancy or maternity leave when filling  a post in school and that maternity leave is a feature of primary schools having regard to the gender profile of teachers – it was submitted that there was no financial burden of any nature  on a school when a teacher goes on maternity leave.

It was submitted that there was no evidence  that the respondent allowed the complainant’s maternity leave to adversely influence the outcome of her interview .It was argued that the authority invoked by the complainants side  in Melgar v Ayuntamiento de los Barros C-438/99 could be distinguished from the instant case as it was not simply a case of renewing a fixed term contract – the respondent was obliged to advertise the positions for competition as they exceeded 24 weeks.

It was submitted that no evidence of discrimination on the grounds of family status had been presented – the representative referenced the fixed term contracts awarded to the complainant between 2015-2018 and submitted family status did not impede any of those appointments. It was submitted that given the family status of teachers at the school where 12 out of 16 had children  , it was clear that the respondent did not discriminate on the grounds of family status.

It was submitted that the complainant’s acknowledged disability was never a factor considered by the respondent. It was contended that the complainant had been reemployed following a prolonged period of sick leave – notwithstanding the respondent’s knowledge of her medical condition. It was submitted that the repeated reappointment of the complainant while being aware of the complainant’s disability demonstrated that the respondent  did not discriminate against the complainant on the grounds of disability.

It was submitted by the respondent that they were under an obligation to conduct competitions in a fair and transparent manner and that it would be unfair to call external candidates to interviews in circumstances where internal candidates were going to get preferential treatment.

In conclusion it was submitted that the complainant had not established a prima facie case of discrimination on the grounds alleged and that in the alternative and without prejudice to that submission that the evidence of the manner in which the complainant has been treated by the respondent rebuts any presumption of discrimination on the grounds alleged.

The respondent furnished a responding submission to the complainant’s supplementary submission which is summarised below:

The respondent asserted that the allegations about the Principal acting to the detriment of the complainant by delaying and amending her Maternity Benefit Form from 10Nov.2018 to 31August 2018 – the end date of her employment – were unfounded. It was contended that the Principal was correct in his initial views that the Maternity leave expired on the 31st.August 2081 and this did not affect her right to receive Maternity Benefit up to the 10th.Nov.2018.

It was submitted that the allegation that the  change in the weighting criteria disadvantaged the complainant was without foundation -it was submitted that the respondent had carried out an analysis of how the candidates would have performed under the previous weighting system and it was contended that the analysis revealed that the complainant would not have been placed any differently .Two  documents were submitted in support of these  assertions – “Relationship Between Marking Scheme & Questions “ and the Comparative Analysis between both weighting schemes.

It was submitted that the lack of interview notes does not of itself  infer discrimination  and the representative repeated his earlier submissions on the interview process and the conduct of same. It was emphasised that the school complied in full with the Dept of Education Procedures  and that said procedures do not require the members of the Selection Board to keep notes on the various candidates.

With respect to the authorities invoked in the complainant’s supplementary submissions, the representative referenced his previous submissions and argued that the instant case can be distinguished from

O ‘Higgins v UCD – in the instant case , there was a marking scheme and each member of the Selection Board individually marked each candidate on the basis of criteria that had been agreed prior to the applications being opened ;

Daughters of Charity v Marta McGinn –

It was submitted that all candidates were sufficiently qualified for the positions advertised and no emphasis was put on additional qualifications as a necessary or desirable quality for the posts. It was submitted that each member of the Selection Board did keep individual marking sheets on each candidate;

South Eastern Health Board v Brigid Burke

It was submitted that unlike the arrangements that applied in the above case , the criteria for the interviews was decided  upon prior to the applications being opened and all of the candidates had the required qualifications for the roles as advertised;

Co.Louth VEC v Don Johnson

It was submitted that the complainant’s representative had selectively quoted from the above decision and that ultimately the Court had found – notwithstanding that contemporaneous notes were not taken during the interview – that it could not find fault with the record keeping in the competition or in the decision making process on the marks awarded.

It was reiterated that the complainant had furnished no evidence to establish a prima facie case of  discrimination. It was submitted that the procedure followed by the Selection Board was that set down by the Dept of Education and there was no variation that could have influenced the outcome of the process by reference to gender , family status or disability. The practise of keeping marking sheets had been the practise of the Selection Board for years  and that their employment of that practise cannot be considered to infer discrimination against the complainant.

Nevins , Murphy & Flood v Portroe Stevedores Ltd-

The respondent’s representative summarised the evidence of the complainants and pointed to inconsistencies in the questioning of the candidates – one of whom had been asked his age. The Court had accepted that this question had been asked and had accepted that there was no criteria set out for the interview process.It was contended that in the instant case no evidence had been provided from which it could be inferred that the respondent discriminated against the complainant on either a conscious or subconscious basis. The complainant was treated the same as every other candidate and was asked the same questions. All candidates were marked in accordance with the established criteria.

The representative repeated previous submissions on Graham Anthony and Company Ltd v Margetts and asserted that the complainant had not produced any facts , other than the fact that she falls within the discriminatory grounds , from which discrimination on the part of the respondent could be inferred .

The respondent’s representative vehemently refuted that allegation by the union that in compiling the comparative analysis of interviews including and excluding the additional weighting  and asserted that this was presented as a comparative analysis and did not constitute an attempt to manufacture evidence. It was submitted that the school used the same criterion for many years – on this occasion the Patron had requested a particular  question  and the criteria was amended to take account of this request. The representative asserted that the complainant’s entitlement to Maternity Benefit was not in any way affected by the recorded end date of her maternity leave. It was submitted that the Principal had acted correctly and ultimately inserted the November 2018 date.

Summary of Pertinent Evidence of Principal.

The witness confirmed he was working for 20 years and set out a chronology of the complainant’s employment history with the school since 2014.He said the same general criteria were used for the competitions in which the claimant had competed .The Principal said there was never any intention on his part to adversely impact on the complainant’s entitlement to Maternity Benefit. He said when the complainant contacted him about amending the date , he followed up with an email and did so.

The Principal said the interview was conducted in accordance with the  Dept. of Education guidelines – which they are constantly reminded about. Temporary teachers should be notified and that was done. He outlined the recruitment process and the notification to candidates. He confirmed that by and large the same questions are asked. On  this occasion the Patron was concerned about the standard of Irish which was why the CPD question was included. He said it was important that this question was answered in the affirmative .The marking system  was changed to reflect the volume of questions and he said his accompanying document SR2 explained the rationale  for increasing marks in certain areas. The witness explained that the Selection Panel members filled in the marking sheet after each interview – he said notes were not taken as it was much easier to concentrate on the answers .The panel members completed the  sheets separately. The witnesss said the complainant did not perform as well as he expected or as well as other candidates. Questions were asked and answers given .He said of the 4 internal candidates – 2 were successful and 2 were not. The complainant was ranked 5th . and he was surprised that all first 4 candidates accepted the offers. In explaining the delay in notifying the complainant , the principal explained the approval process and said he could not notify the complainant or the candidate ranked no 6 until he knew if  there was a job to offer them – which depended upon how many accepted the offer. The witness said he spoke to the  complainant out of courtesy rather than issue a sudden letter – he said it was not done out of disrespect .He asked if she applied for other jobs out of concern – he assured her that neither maternity nor disability had been a factor. He said he had a family member with mental health challenges and would never hold that against anybody. In terms of feedback , the principal said he received  a text message from the complainant and he assured her that being out sick or on maternity leave had nothing to do with it. The Principal did nt accept the INTO’s submission that the complainant should have got higher marks in certain criteria – he said a review indicated that her ranking would have remained the same under the former marking scheme. He emphasised that no two  interviews are the same ; ranking and scores can go up or down at any interview based on the person against whom one is competing .While  he could not comment on the complainant’s preparation for interview , he asserted that the quality of the complainant’s answers was not as high as the other candidates .The witness denied that sick leave , maternity leave or parental leave were issues .It was  no issue if any of the candidates were a parent or not. Whether or not the complainant may have to avail of sick leave was never considered. The witness confirmed that all  4 succesful candidates took up their posts on the 1st.Sept. 2018 – the witness said if the complainant had got a job they would have provided cover for her. The witness refuted that any consideration had been given to the complainant’s unavailability to start in September.

The witness said that a general assessment criteria  was used by many schools – he said that the complainant had been successful on some occasions and reiterated that her maternity leave was not considered.

The witness said he knew the complainant had been a parent when she attended subsequent interviews after her initial application in 2014.

Under cross examination the witness confirmed that all candidates had answered in the affirmative to the Patron’s question about CPD,s.The witness confirmed that his analysis of the marking system as set out in SR2 was drawn up before the second hearing – it demonstrated why the weighting and not the criteria  had changed – he asserted the analysis was done for the purposes of the WRC process. He stated that 8 people had applied for the competition – he said the quality of the written applications only came into play if the competition was oversubscribed. He said you could not just accept a CV on face value. Ability to speak would be taken account of at the interview .He said the complainant performed well in linguistic ability and he confirmed the complainant had the most teaching experience. The witness  referenced training in equality and the 7 discriminatory grounds. The witness reaffirmed that it was not the practise  to take  notes. He summarised the time tabling of the interviews and the order of merit of the candidates. He stated that every interview stands on its own - relative to other candidates and marks are awarded by the interviewer on the answers provided by the candidate. It was put to him that the complainant’s marks are down relative to other years – he said the marks are based on what happened on the day .He said if I gave the impression we were comparing candidates – he  asserted  that is not what I am trying to say .He submitted she was marked independently of other candidates based on the quality of  her answers.

Summary of Pertinent Evidence of Mr.G

The witness set out his career history and involvement with the school since 2007 .He had a lot of experience of interviewing in the college and Local Authority sectors   and advised that he had a HR brief in his position as a Local Authority manager. He had been involved in recruitment over many years and confirmed that the interviews were conducted in accordance with the Dept. of Education guidelines. He was familiar with the marking criteria – it had been the same for many years. The weighting had changed slightly because of the introduction of the new question about CPD,s. There were no complaints about the criteria and they asked similar questions throughout the process.

The witness said of the original 8 candidates , 6 attended for interview – there were 4 internal candidates and 2 were successful. He said that he opened up the interview , put the candidate at their ease and then handed over to the independent Panel member and then the Principal. He  said the questions were written up in advance and all candidates were asked the same questions. Each candidate was marked individually on individual sheets and at the end of the interviews the marks were added up. He reiterated that the same criteria was used. He was  aware the complainant was on maternity leave. He said she did a good interview but it was all relative and she did not do as well as previous interviews. He said she was not as focused as she had been at previous interviews. He denied the complainant was marked down because of mental health or maternity leave and said these had no place in the process. He said the majority of teachers were female and maternity leave was a feature of employment in schools. He catalogued the administrative process following the completion of the interviews.

The witness stated that the INTO wrote to the school after the process was complete enquiring about the complainant’s entitlement to a CID – he confirmed that the INTO did not raise the issue of alleged discriminatory treatment. The witness said the same process as previous was followed and there was no question of maternity leave or disability being considered – none whatsoever.

Under cross examination the witness confirmed he had congratulated the complainant on the birth of her child - when asked if he congratulated any other candidate he replied I don’t believe I did. He thought  it was the proper thing to do. He considered it appropriate – it was part of the process of putting her at ease and he was acknowledging  a feature of her life .He said the position of the   other candidates and leave was never part of his consideration.

With respect to notetaking , the witness said he followed past practise and the procedures and processes  set out. He said the practises adopted  varied  across employments.

The witness said he awarded the marks after the candidate had completed her interview .He referenced the Patrons request for the inclusion of the CPD question – the complainant’s answer was in the affirmative. It was put to him that no evidence of that instruction from the Patron  had been provided. He denied that there was any collective benchmarking process at the end of the interviews. Marks were awarded after each candidate completed the interview – he said there was not a formal process of allocation of questions prior to the interviews – he said SR2 was never for that purpose .The witness said when asked if there were discussions around justifying weighting and changing of marks , that no such process took place. The witness thought the complainant had the highest qualifications but was not entirely sure. The witness referenced general assessment and suitability for the post and each candidate was marked on their responses. Different abilities were explored including talent , warmth , demeanour and ability to work as a team player .The witness confirmed he had undertaken training on the equality aspect to recruitment .The witness confirmed that he asked the Principal to contact the candidates to advise them of the results.

On redirect the witness  clarified that he congratulated the complainant when he left the room to greet her. The witness said that Sr2 was provided to show the Principal’s thinking around the change of weighting and that the document only featured for these proceedings. He confirmed that the qualifications required was a degree – some had additional qualifications but there was no requirement for same.

Pertinent Evidence of Ms.McD

The witness set out her career background as teacher and a Principal and confirmed she had sat on several interview boards and had been an external panel member on numerous occasions. She was very familiar with the Dept. of Education Procedures and had received training on recruitment from different bodies including the INTO and Principal’s Networks. She said the criteria was agreed prior to interview – the same as had been done on the previous occasion she was on the selection panel  for the school  in 2015 but the complainant had not competed at that time. The questions were similar to the previous occasion – there was a mandatory question on professional upskilling. The witness said the questions were very broad – the Principal had enquired about her availability for interviewing  and he went through the criteria and questions with her .

The witness stated that all candidates were asked the same questions. Marks were awarded on performance – the standard was exceptionally high with one candidate giving lots of concrete examples and coming across as very eager. The witness said other candidates had performed really  well. The witness said she was unaware of the complainant’s mental health issues – it was never discussed. The witness said the subject of maternity leave was never discussed.

The witness said she used the marking system , she looked at the criteria  and gave her own marks based on how the candidate performed on the day .Some criteria could be marked very quickly for example the ethos of the school , religious and language ethos. Qualifications were next and finally overall performance. The ranking was done at the conclusion when the marks were put on a spread sheet and added up. The witness refuted that maternity leave or mental health were discussed – they did not enter into the decision making process and the witness said we were extremely fair.

Under cross examination , the witness was questioned on note taking and about marking while candidates were speaking. The witness said she did not take notes .She said there was no discussion about what questions might be considered under a domain. The witness said she became aware the complainant had a baby. The witness said all  candidates had the required qualifications – there was no requirement for additional qualifications.

The respondents representative summed up as follows :

This claim arises out of the failure of the Complainant to secure one of four temporary positions in the Respondent’s School for the academic year commencing September 2018. The Complainant alleges that she was discriminated against in the manner in which her interview was marked by the Respondent’s Interview Panel on the grounds of gender, disability and family status. Her claims in respect of promotion, victimisation, failure to provide reasonable accommodation and conditions of employment were withdrawn on the first day of hearing

 Evidence has now been heard from the Complainant and from all three members of the Interview Panel. The Interview Panel rejects any suggestion of discrimination on the grounds alleged and has given evidence that the Complainant’s maternity leave or disability played no part in their decision. Their evidence has been that dealing with the recruitment process in July 2018 they complied fully with the Recruitment and Appointment Procedures for Teachers in Recognised Primary Schools as published by the Department of Education. (See Appendix R3 previously furnished)

 The evidence of the Respondent is that in line with procedures set down by the Department of Education it notified the Complainant, who was on maternity leave at the material time, that there were four temporary positions available for the 2018/2019 academic year. The Complainant applied for one of these positions and was interviewed along with five other candidates. Two candidates who had been selected for interview did not turn up. There were four internal candidates, two of whom were successful and two unsuccessful.

The evidence of the Respondent has been that the criteria used for the interviews was the same criteria that was used for recruitment procedures in previous years and the same criteria that has been used since. The Respondent has also confirmed that the same questions were used as in previous years with the exception of one additional question that the Patron Body had requested all schools to use. The same questions continue to be used since. The Respondent also gave evidence that as a result of the new question imposed by the Patron Body, the Principal reviewed the weighting of marks and amended same slightly in consultation with the Chairperson of the Board of Management. The Complainant has alleged that “the Respondent had a predetermined outcome of the Complainant’s interview to ensure that criteria befitting to her were not weighted as highly as criteria befitting to candidates other than the complainant”. She alleged that “this disadvantaged the Complainant in her interview marks”. It is respectfully submitted that there is no evidence of this whatsoever and an analysis of the interviews conducted in 2018 has established that if the same weighting was used as had been used in 2017 and previous years the outcome of the interviews would have been the same. (See Appendix SR 3 previously furnished)

The Complainant first applied for a position in the Respondent’s school in August 2014 but was unsuccessful at interview. She was then employed following interview on a fixed term contract covering maternity leave commencing 5 January 2015. This contract ended in June 2015. She was employed in a different school by a different Board of Management for the 2015/2016 academic year but did work some hours in the Respondent’s school as the position was a Learning Support Teacher working in a cluster of schools. She had been invited to attend the Respondent’s school for interview for the academic year 2015/2016 but didn’t do so. The Complainant then attended for an interview for a permanent position commencing September 2016 but was unsuccessful. There was only one position advertised and she ranked third in the interviews. Subsequently a temporary position arose and when the 2nd ranked candidate chose not to accept the offer it was offered to the Complainant who did accept same. The Complainant was next employed for a fixed term contract commencing 7 November 2016 and ending on 31 August 2017. She was employed following interview. She then applied for a further fixed term contract and following interview she was employed from 31 August 2017 to 31 August 2018. For all the above interviews the same criteria were used by the Respondent and the same questions were asked. At no time did the Complainant ever object to the criteria or questions.

The Labour Court in A Worker v A Hotel (2010) E.L.R. 72 considered Section 85A of the Act which provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests with the Respondent. The Court stated

: “The test for applying that provision is well settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board (2001) E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed”.

 It is respectfully submitted that the Complainant in this case has not discharged the initial probative burden. It is clear from the evidence that she worked in the Respondent’s school on a number of fixed term contracts. She interviewed on several occasions. Sometimes she was successful and other times she was not.

The Complainant’s evidence was that she greatly enjoyed her time working in the Respondent’s school. When she was on maternity leave she confirmed that the school notified her of four temporary positions for the 2018/2019 school year. She applied for one of the positions. She gave evidence that she “thought it was just a matter of formality”. She said she felt she was “bound to get at least one of the positions”. She confirmed that she was called to interview and said it was no different to any of her previous interviews. She said that she felt she had performed well and that coming out of the interview she felt “it was only a formality and I was happy out”. She said that she had done a fantastic interview and that it was just a case of waiting for the phone call. She said the interview had lasted approximately 25 minutes which would have been the same as previous interviews in the school.

 Under cross-examination she confirmed that the interview process itself was fine. She said that it was only the result that she has a concern about as she believes she did better at interview than how she was marked. She also confirmed that she had no concerns when she left the interview. Her concerns only started when she was contacted by an SNA who works in the school indicating that two of the positions had been filled.

In the case of Graham Anthony and Company Limited v Margetts EDA038, the Labour Court considered the Burden of Proof for a Complainant with regard to establishing a prima facie case. The Court stated: “The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must produce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

 In the circumstances it is respectfully submitted that absolutely no evidence of any nature has been furnished to prove the primary facts from which an inference of discrimination may be drawn.

 The Complainant has approached these proceedings in a manner of trying to portray a conspiracy against her, led by the Principal.

She gave sworn evidence that she had applied for feedback from the Principal but that he failed to give it to her. It was put to her in cross-examination that she had not applied for feedback but she denied this. It was put to her that she had sent a text message to the Principal on 17 July 2018 questioning whether her lack of success was because of her mental health illness in the past or the pregnancy -related sick leave. The Principal had responded that neither of those two things were taken into account whatsoever. In response to questions asked by the Adjudicator on day 3 she confirmed that she did not pursue the issue of feedback after her text message. She said she had the issue of maternity leave on her mind but did not raise it.

 On 18 July she sent a text to the Principal looking for the Chairpersons telephone number. He was subsequently contacted by the INTO who raised the issue of a possible Contract of Indefinite Duration. At no time during the telephone conversation or subsequent correspondence dated the INTO raise the issue of alleged discrimination on the grounds of gender or disability. (See Appendix R4 previously furnished).

The Complainant alleged that the Principal deliberately attempted to act to her detriment by changing the date on her application form for maternity benefit. This issue has been addressed in the Respondent’s supplemental submission dated 16 November 2021 and copies of the relevant legislation has been furnished. It is clear from the legislation that the Complainant’s maternity leave was due to end on 31 August 2018. This would not have impacted her maternity benefit which she would be entitled to receive until 10 November 2018. Her evidence was that she did receive maternity benefit until 10 November 2018 despite not being employed. The text message correspondence between the Principal and Complainant is at Appendix 10 of the Complainants booklet. It is clear that the Principal texted the Complainant on 25 April asking her to call him. He stated that he thought she had the form wrong. He sent a further message to say that he had filled out the form and sent it to her anyway. Six days later she sent a text to him stating that 10 November 2018 should be put down as the end date of her maternity leave. He responded the same day to confirm that he would amend the form. It In her sworn evidence the Complainant alleged that she had correspondence from the Department of Social Protection confirming that the date should be 10 November 2018. When asked to produce the correspondence she ultimately produced a letter that did not give any such confirmation.

 The Complainant gave evidence that when the Principal telephoned her to tell her that she had been unsuccessful that he asked her during that conversation if she had applied for any other jobs. She had not done so. She has interpreted this question as evidence of the Principal not wanting her in the Respondent’s school. His evidence is that he was asking this question out of concern for her.

The Complainant’s Representative alleged on Day 3 that the Complainant had been diagnosed as suffering from Post Traumatic Stress Disorder as a result of the crossexamination that she had endured on Day 2 and everything leading up to same. The Complainant was requested by the Adjudicator to furnish a report from her doctor confirming this diagnosis and the cause of same. We are advised today that there is no such report.

The Complainant has alleged that the weighting of the interview scores in 2018 is evidence of discrimination. An analysis of the scores has shown that the results would not have changed in any way had the same waiting been used as had been used in previous years.

 The Complainant has been critical of the criteria used to assess the candidates in 2018. It is respectfully submitted that this is the same criteria that has been used in all other interviews conducted by the Respondent for several years. The Complainant attended a number of these interviews and has never complained about the criteria prior to these proceedings. In this regard we also note that the Labour Court in O’Halloran v Galway City Partnership EDA-077 pointed out that “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 this current case all of the candidates got full marks for the criteria “Qualifications”.

 The Complainant has also been critical of the marks she received at interview and is now suggesting that that is evidence of discrimination. In the case of Eleanor O’Higgins v UCD EDA131 the Labour Court held that particular considerations apply in cases in which discrimination is alleged in the filling of jobs, including promotions. The Court stated “In Determination EDA042, Kathleen Moore Walsh v Waterford Institute of Technology, this 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 merits 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 the decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result”.

 It is respectfully submitted that the Interview Panel followed the procedures set down by the Department of Education closely. The Complainant’s own evidence is that there was nothing wrong with the process and that the interview was similar to other years. Her only complaint is that, on this occasion, she was unsuccessful. All candidates were suitably qualified for the positions as advertised. There was no emphasis put on additional qualifications. The Interview Panel has given sworn evidence that they marked the candidates without any reference to gender or disability. It is only after the interviews were completed that the marks were assembled and the ranking of the candidates was established.

The Complainant has also relied upon the fact that the Interview Panel did not keep written notes as being evidence of discrimination. It is respectfully submitted that this issue has been dealt with comprehensively in the Respondent’s Supplemental Submission dated 16 November 2021. The case law referred to by the Complainant deals with cases almost exclusively in which neither contemporaneous notes nor a marking scheme was used. The Interview Panel complied with the procedures set down by the Department of Education in completing a marking sheet for each candidate after interview.

 In all the circumstances it is submitted that no evidence of discrimination has been established by the Complainant.

Without prejudice to the above if the Adjudicator is satisfied that a prima facie has been established it is respectfully submitted that the fact that the Complainant was employed on a number of fixed term contracts subsequent to the Respondent becoming aware of her mental illness is evidence that she was not discriminated against as a result of her mental illness.

 It is also submitted that the Respondent is dealing with maternity leave on a regular basis and is evidence that the Respondent does not discriminate against employees by virtue of maternity leave. The Complainant had worked in the school to cover teachers on maternity leave in the past. Two of the positions that she interviewed for in 2018 were for maternity leave cover. The Complainant herself was on maternity leave when she was notified of the interviews by the Respondent. More than 80% of primary school teachers are female and maternity leave is simply an issue that schools deal with on a very regular basis. There is no evidence that the Respondent has ever discriminated against any member of staff by virtue of their availing of maternity leave.

 It is also clear that the Respondent was aware that the Complainant is a parent and has been since the time she was first employed in the school. This did not affect her getting further contracts of employment.

Many of the teachers in the school are parents  and this is simply not an issue for the respondent.

I find the complaint is not well founded

Discriminatory treatment on the grounds of gender , family status and disability.