Complainant

Respondent

Parties

Eithne  Lannon

Board of Management, North Bay Educate Together National School

Representatives

Mary Paula Guinness BL, instructed by  Hayes Solicitors

Rosemary Mallon BL, instructed by  Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00044064-001

14/05/2021

The complainant submits that the respondent discriminated against her on the grounds of age and gender contrary to the Employment Equality Acts in terms of promotion to Principal. The complainant submits that her non appointment to the position of Principal was tainted with discrimination on grounds of age and gender in breach of section 6 and 8 of the legislation.

Background

The complainant is a fully qualified primary school teacher, having graduated with a Bachelor of Education (Honours) from St. Patrick’s College of Education. In addition, the complainant  has a Bachelor of Science in Counselling and Psychotherapy, a Masters of Philosophy in Psychoanalytic Studies and a Master in Women’s Studies. The complainant states that she has 36 years of experience as a teacher in Ireland. She states that having taught in three schools, she has vast teaching experience in a variety of socio-economic settings. Over the course of her career, the complainant has taught in special education settings and all class levels in primary schools and discharged the additional roles of Deputy Principal, Acting Principal, Assistant Principal, Leading Teaching and Learning in Special Education Needs (SEN) as SEN Co-ordinator and Leading Teaching and Learning as Music co-ordinator. The complainant played a pivotal role in leading and developing the Ethical Core Curriculum/Learn Together Programme, in particular she was very involved in developing the Equality strand of this Programme. The complainant has also been a Teachers’ Nominee on the Board of Management for a period of 13 years, she was Recording Secretary for 10 years and Treasurer for three years. She was also a Health and Safety representative for 10 years.

The complainant states that she has undertaken extensive leadership, management and pastoral care training and has taken a lead role on a wide variety of initiatives in her current and past employment providing leadership, guidance, professional advice and support to the school management team, teachers, special needs assistants, parents and pupils. The complainant asserts that her knowledge and expertise has been very beneficial to the school communities she has worked with in ensuring the development of professional networks in order to derive optimum access to external agencies and relevant professional support for the staff and students. The complainant states that she has been involved in in-school management and leadership from early on in her teaching career. She was appointed a senior post holder (now known as Assistant Principal) in 1997 in the respondent school with responsibility for leading Teaching and Learning in Music, as well as leading the development of the Ethical Core Curriculum/Learn Together programme. Between 1998 to 2001, the complainant was appointed through a competitive interview process to Acting Deputy Principal, with the added responsibility for leading the Literacy Curriculum, as well as typical administrative duties associated with the role. The complainant states that in 2001, she was promoted to the permanent role of Deputy Principal. The complainant states that upon her appointment to the senior leadership role of Deputy Principal in 2001, she assumed responsibility for a wide range of areas including, health and safety, music and literacy. The complainant states that her remit also extended to school self-evaluation upon the roll-out of same.

The complainant states that from July 2018 to April 2019 (10 months), she undertook the role of Acting Principal and carried out in full the duties associated with same, including the day to day running of the school with a staff of 21 people reporting to her, 14 teachers, 5 SNA’s, the secretary and caretaker. The complainant states that she also undertook recruitment of staff, specifically 3 teachers, an SNA and a new school secretary. The complainant states that further aspects of managing the organisation entailed consulting with the Chairperson of the Board of Management in the management of the school, specifically in the areas of budgeting, health and safety and building maintenance. The complainant states that as Principal, she liaised with external bodies such as National Council for Special Education (NCSE) and National Educational Psychological Service (NEPS) in relation to a successful application to increase staffing for a new Special Educational Needs pupil in the school. This involved overseeing a NEPS review of all students with special needs, along with all relevant paperwork as well as a review of the management of SNA duties and timetables. The complainant states that she also liaised with Educate Together regarding vetting of new staff. The complainant states that the school community has strongly affirmed the complainant as being extremely effective in the many leadership roles she has undertaken in the school over many years. The complainant states that the Chairperson positively affirmed that her “record and reputation” are beyond question and recognises her “service and commitment to the school and its ethos over many years” and acknowledges that “The school is fortunate to have you in its community”. The complainant states that she has demonstrated a strong commitment to the Educate Together ethos throughout her tenure with the respondent. She states that she has fostered a culture of inclusivity for all members of the school community as an integral element of the Educate Together ethos in such schools.

Complaint of Discrimination

The complainant states that the respondent school is an equality based, non-denominational school catering for junior infants up to 6th class pupils. The school has an enrolment of 216 pupils, 105 female and 111 male. It is led by an Administrative Principal. The complainant states that a vacancy for the position of Principal was advertised on 5 November 2020 with a closing date of 20 November 2020 identifying the school’s patron as Educate Together when in fact the school is under a local patron. The complainant states that on 14 November 2020, she applied for the position setting out her qualifications, experience and vision for the school by cover letter and application form. The complainant states that on 22 December 2020, the respondent informed the complainant that she was shortlisted for interview on 4 January 2021. She states that no reference was made to the identities of the interview panel, however this is stipulated as a requirement in the Educate Together Principal Recruitment Policy. The complainant states this Policy included a template letter indicating the names of interviewers. She states that there was an extended delay of 31 days between the closing date and date of interview without explanation. The complainant states that according to the guidelines this should have been offered within 14 days. The complainant states that from advertisement of the position to notification of outcome took almost 8 weeks, 54 days in total.

The complainant states that she was interviewed on 4 January 2021 by way of a video conferencing facility. The interview panel consisted of CS (parent, Chair of local patron), CC (ex- parent, ex-secretary of patron) AB, Independent Assessor (Principal of Catholic school) TM Independent Assessor (Principal of Educate Together school) and AN (Chairperson of the Board of Management, parent). The complainant states that the composition of this interview panel was not as provided for in the Educate Together interview guidelines. She states that this document was uploaded to the Board documents by the Chairperson, prior to the recruitment process starting. The complainant states that three past or present parents of children attending the school were included as interviewers meaning parent representatives made up the majority of the panel. The complainant states that the recommended make up of a panel from the Educate Together Policy on Principal recruitment is two Educate Together principals and an Educate Together head office person, as well as a retired principal. The complainant asserts that all interview panel members should have had training and experience in interviewing. The complainant states that the candidates were assessed by the selection board in relation to (i) leading teaching and learning (ii) managing the organisation (iii) leading school development and (iv) developing leadership capacity.

The complainant states that on 13 January 2021, she was advised by way of a phone call from the Chairperson Mr AN, that while she had done an excellent interview, she was unsuccessful in her application. The complainant states that a younger male candidate was successful and subsequently was appointed as Principal of the respondent school. The complainant states that she notified the Chairperson during that call that she felt a strong conflict of interest existed on behalf of one of the interviewers, a past parent who had taken issue with school management in 2017/18 when the complainant was deputy principal and a member of the Board.  The complainant states that during the phone call on 13 January 2021, the Chairperson informed the complainant that “you clearly had more experience than anyone else that applied”; she states he further stated “the person who got the position was not a principal or deputy and has less experience than you. However, they clearly had planned a career path towards being a principal, and you had not”.

The complainant states that she understood from the phone call from the Chairperson that she was not awarded marks for the depth and breadth of her experience as a school leader for over 23 years, nor for her academic work and courses in leadership and curriculum development she had undertaken throughout her teaching career. The complainant states that the successful candidate had no leadership experience within the primary school setting yet apparently scored higher in the category “Managing the School Organisation”. The complainant states that her academic research and experience are comprised two Masters degrees (Honours) and two primary degrees (Honours). The complainant states that her extensive work and research in Psychology/Psychotherapy are central to her leadership ability as well as to her demonstrated competence in managing the complex needs of a school organisation, which primarily involves working with people, children families and staff. The complainant submits that the lack of awarding marks for her leadership experience is discriminatory on the grounds of age when compared to the successful candidate. The complainant contends that in terms of curriculum development and research, the complainant’s thesis on gender, researched the representation of females and males in the primary school history curriculum. This research was used in her leadership of Teaching and Learning both within the school and in the equality module she authored for raising teachers’ awareness of gender equality in education. The complainant states that not awarding marks for her research and experience in psychotherapy and gender studies is discriminatory in terms of age and gender when compared to the successful candidate, whom the Chairperson believed had shown through his lesser academic work to have “planned a career path towards being a principal (while she) had not”.

The complainant asserts that the interview panel failed in applying the criteria in a way that reflected the value of the complainant’s experience. The complainant states that the Chairperson’s comment that she had not planned a career path towards being a principal indicates a bias towards her based on her age and gender. The complainant contends that the work and commitment involved in carrying out the responsibilities of deputy principal for 22 years and Acting principal for 10 months is an excellent and very appropriate way to plan and prepare for the role of principal. The complainant states that as a female with children, she worked in a job sharing capacity while in her thirties to allow a work-family balance where she could both care for her family and continue in her career. During this time she held the position of assistant principal thereby continuing to be a consistent and dedicated leader in the school. The complainant states that she continued during this time to lead teaching and learning in music and the learn together curriculum through many successful curriculum initiatives. The complainant states that many women in their 30’s choose a work-life balance to care for their families at a time when many men are moving forward in their careers. The complainant states that this gender based decision does not in any way indicate that she did not plan her career towards becoming a principal and it should not be held against her. The complainant states that the leadership positions she has held demonstrate her drive and ability to lead and be in a management position. The complainant further states that by being a deputy principal, she has been planning her career path towards principal as the natural next step. In addition the complainant submits that the fact that the successful candidate had no experience as a principal, deputy principal nor assistant principal but yet the Chairperson believes that the successful candidate has the years to develop is an indication of discrimination against the complainant on the grounds of age. The complainant states that the Chairperson indicates in his email to her that “the incoming principal will … I believe, lean heavily on your wisdom and experience”.

The complainant states that this statement openly acknowledges the competency, suitability and skill of the complainant as a leader in the school; it is hugely contradictory that this is not reflected in the marks given to the complainant at interview.   The complainant states that the email also affirms that her “record and reputation are beyond question” and her “service and commitment to the school and its ethos over many years” and acknowledges that “the school is fortunate to have (her in its community”. The complainant states that the younger male candidate had no practical experience in a primary school setting as a promoted postholder. The complainant states that the interview panel’s marks failed to reflect the comprehensive experience she had which was extremely relevant to the core work of managing a school. The complainant states that the fact that marks were changed down gives rise to further questions as to the transparency of the marking process. The complainant contends that it is of relevance that the complainant had 35 years teaching experience compared to the younger male candidate’s 13 years teaching experience. The complainant states that she had 23 years of leadership experience as a promoted post holder in a school, compared to none in the case of the younger male candidate. The complainant states that this amounts to evidence of a prima facie case of discrimination and the onus then falls to the respondent to demonstrate that the selection process was not tainted by discrimination.

The complainant states that following the outcome of the appointment process, she requested feedback on 13 January 2021 from the Chairperson regarding the interview. The complainant states that the Chairperson provided the interview scoring sheet and interview notes to her. The complainant contends that two sets of the interview notes supplied were illegible and the font indecipherable. In addition the complainant states that there was an absence of a clear marking scheme which renders it impossible for the respondent to prove an absence of discrimination and therefore a failure by the respondent to rebut the prima facie case established by the complainant. The complainant states that her performance at interview was described as excellent by the Chairperson. She states that the depth and breadth of her 23 years of leadership experience and expertise were not reflected in her scores nor was her extensive academic qualifications. The complainant states that on 3 June 2021, her union sent a request for information to the respondent requesting numerous pieces of documentation relevant to the matter. The complainant states that the respondent has not produced all documentation requested redacted or otherwise; she states that this demonstrates a lack of transparency on the part of the respondent.

Interview Scores 

The complainant states that she has serious concerns that the capacity, competency and experience of each candidate was not fully elicited and probed at interview. The complainant submits that she did an excellent interview and was taken aback by the provision of the lack of legible notes. She states that the quality of the interview was not reflected in the paperwork generated at interview. The complainant asserts that the failure to keep proper notes raises serious concerns about the integrity and transparency of the appointment process for the position of principal. The complainant states that she was given a score of 103 out of 125 marks for the criterion Leading Teaching and Learning which she states is unfairly and discriminatorily low given her in depth knowledge and experience as well as her practical and academic understanding of the needs and challenges of the school community. The complainant states that she has in-school management experience with 10 months as acting principal, 22 years as deputy principal and a proven track record. The complainant states that she has extensive skills and experience in leading Learning and Teaching to promote children’s engagement and interest in creativity. The complainant maintains that throughout her career with the respondent school, she has initiated and led collaborative workshops with visiting writers and poets. She states that due to her work, the school has a strong record of competing and being successful in poetry competitions. She states she has proactively engaged with the ongoing development of school vision, policy and practice during her time as a member of school leadership teams. The complainant states that in comparison, the successful candidate had no in-school management experience or other leading teaching and learning experience with a school setting.

The complainant states that she was given a score on the criterion Managing the Organisation of 93 out of 125 marks which she argues is unfairly and discriminatorily low. The complainant states that she has wide ranging and varied leadership and teaching experience over her 35 year teaching career, including teaching experience at every class level from junior infants to 6th class, experience of senior leadership roles within the school – acting principal and 22 years as deputy principal and 13 years as a board of management member. The complainant states that she has undertaken masters and degree level academic CPD courses relevant to management and leadership in schools. She states that during her time as acting principal, she undertook the day to day running of the school, curriculum planning and implementation, leading teaching and learning and communication with staff and parents. The complainant states that she had 21 staff reporting to her including the secretary and caretaker. She also managed maintenance and upgrading of the IT system, the creation of a new school website as well as maintenance and upgrading of the school building. The complainant states that she had recruitment experience arising from interviewing for permanent  and fixed contract teaching positions, an SNA and a new school secretary. The complainant also states that she was involved in the extended process of applying for additional SNA support from the National Council for Special Education. The complainant states that she has been a member of the Board of management for over 13 years during this time she had liaised with various members of the school community and been involved in the development and implementation of new policies within the school. The complainant states that she has a particular input into the area of health and safety and has organised many aspects of staff training in this regard. The complainant states that in her role as SEN co-ordinator, she has managed the timetabling and allocation of SNA hours throughout the school so that the highest need children receive the highest support.

The complainant states that on the criterion of Leading School Development in which she got 92 marks out of 125, she argues that it is unfairly and discriminatorily low. She states that she has worked closely alongside the Board of management and the Patron in order to lead school development. The complainant states that in her 23 years in a leadership role in the school, she has led numerous school evaluation and improvement processes in the areas of literacy, music, well being, gender equality, the learn together programme, visual art and classroom management approaches and skills. The complainant states that over many years she has developed arts in the school through her focus on creative writing, the music curriculum and through her role as choir director for seven years. The complainant states that during her tenure as acting principal, she initiated a whole school visual arts project with the Patron which also served as a fundraiser. This was a community based project where every class teacher facilitated and guided the children in producing artwork which was then framed and exhibited in the school hall, where they were viewed and enjoyed by the parent and student body. The complainant states that during 2015-2020, she led a new initiative on well-being in the school, piloting and introducing a new programme over the course of four years. She states that as acting principal in 2017/2018 she initiated and led the first mental health week in the school. The complainant states that as a psychotherapist this is an area in which she has extensive knowledge, experience and training.

The complainant states that she recognised ICT as a vital component in the school’s development and the importance of integrating it into teaching, learning and assessment. She states that during her time as acting principal she worked on enhancing the infrastructure within the school by initiating and overseeing the upgrade of the school’s wi-fi system. The complainant states that this was a lengthy and complicated undertaking which required continued oversight and management. She also states that she was involved in the research and procurement of new laptops for all staff. The complainant further states that during her tenure as acting principal, she facilitated, led and oversaw the design and introduction of a vibrant new school website which is a vital tool for communication. The complainant states that she also encouraged and facilitated the re-designing of the school logo for the new website which was approved by the Board.

The complainant states that on the criterion of Developing Leadership Capacity she scored 97 out of 125 marks which is unfairly and discriminatorily low. The complainant submits that during her years as being a school leader she has delivered a style of relational leadership which features exceptional communication at its core and is necessary for the future development of the school. This form of leadership encourages and supports professional dialogue, collaboration and team effort for all the staff and opens up opportunities for creative ideas to be explored. The complainant states that during her time as acting principal, she undertook mentoring and induction work with two newly qualified teachers. She encouraged other staff members to get involved in order to develop teamwork skills and a means of giving new teachers a sense of agency and belonging. She states that as a leader in the school, she frequently provides opportunities for colleagues to initiate and lead projects.

It is the complainant’s understanding that a lengthy discussion occurred after the interview regarding the interviews that had taken place. She states that this is contrary to Circular 0044/2019 Recruitment/Promotion and Leadership for Registered Teachers in Primary Schools wherein it states “Each member of the Interview Board is required to complete his or her own individual marking sheet for each applicant and give it to the Chairperson of the Interview Board on completion of the interviews”. It further states “The individual marks shall be added and the final mark for each applicant will be used to produce a ranking of applicants who are deemed suitable for appointment.”   It was submitted that on review of the complainant’s interview marking sheets, it is clear that the scores have been changed, which has led to a drop of 5 points from the complainant’s overall score. The complainant submits that the score being changed is contrary to the Circular and demonstrates a lack of transparency on the part of the respondent. It is submitted on review of the scores awarded to the complainant that the Board failed to apply a standard consistency scoring or marking framework to the complainant. The complainant submits that the scoring by Interviewer three, relates to her actual experience and knowledge. It is further submitted that Interviewer three is Ms AB, the independent assessor who would have received training in interviewing. The complainant states that the next highest score for her is 11 points lower than the score provided by Ms AB. It is submitted that the significant underscoring is unfair, illogical and manifests irrationality in the result to be deemed discriminatory on the grounds of age and gender.  The complainant states that in this context, the absence of a transparent objective assessment applied to each candidate’s interview means the score is highly likely to be flawed and more prone to unconscious bias and discriminatory outcomes.

Testimony of Complainant

The complainant gave a background to her career history and her various roles of responsibility. She stated that she did a solid interview and the feedback she received from Mr AN was that she “did a strong interview”. The complainant stated that she had a telephone call with Mr AN on 13 January where she stated that she had much more experience than the successful candidate. She further advised Mr AN that the successful candidate had not held any posts of responsibility i.e. deputy principal, acting principal etc. The complainant states that Mr AN responded that the successful appointee demonstrated ambition and showed that they had planned their career path to principal and the complainant had not. The complainant stated that she was astounded by that statement. The complainant stated that she wondered if Mr AN was referring to the years she took and was job-sharing in order to rear her children. The complainant stated that Mr AN stated that the school community wanted a change. The complainant made the point that there are three members of the school community on the Interview Panel. The complainant stated that she took issue with Mr AN stating in a letter that the successful candidate will “lean heavily on you” in that it refers to her wisdom and experience and the connotation to her age.

The complainant states that she was very concerned about the lack of transparency in the process and has many issues with regard to how the marks were awarded. She took issue with the question in relation to an example where a non-professional conflict was dealt with. She states that by asking her for a personal conflict as opposed to her dealing with a conflict in the school setting excluded her significant hands on experience.   The complainant also stated that the fact marks had been changed had resulted in her being disadvantaged.     

Testimony of SM (Retired Principal)

Ms SM, the outgoing Principal and a previous member of Board of Management gave evidence to state that she was present at a Board of Management meeting wherein Mr AN stated that an ambitious young man aged 35 got the post. Ms SM stated that she had concerns that the successful candidate did not meet the requisite criteria of the 4 domains. Ms SM stated that at a further BOM meeting, another male member of the Board repeated the statement that an ambitious young man who had planned his career to be Principal was successful for the post of Principal.  

The complainant submits that but for the discrimination on age and gender grounds, she would have been appointed principal of the respondent school as the most experienced, qualified and suitable candidate for the position. It is submitted that the complainant was discriminated against by the respondent within the meaning of section 6 (1) of the Act, on the grounds of gender and age contrary to section 6(2) (a) and (f) of the Employment Equality Acts. The complainant cites the case law of the Labour Court in O’Higgins v UCD [2013] ELR 146 which was upheld on appeal by the High Court which summarises the applicable principles in claims of alleged discrimination in selection processes as follows:

“1. It is for the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.

2. If the complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3. It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.

4. In cases concerning the filling of a post, it is not the role of the Court to substitute its view on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

7. Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision, the complaint will be made out.

8. 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 submitted that the successful candidate is Mr PK and is the comparator for the purposes of this complaint. The gender of the complainant and the comparator are female and male respectively. It was submitted that the age of the complainant is 57 and the comparator is in or around 35 years of age. It was submitted that the distinction between the complainant and the successful candidate is that the complainant, at the time of her interview and at the time of her appointment was (i) a deputy principal for circa 20 years (ii) had been an acting principal for over a year (iii) had the most leadership experience (iv) had the most teaching experience and (v) more relevant academic qualifications.  By contrast the comparator, the successful candidate’s experience at the time of interview was (i) a mainstream primary school teacher (ii) was not a deputy principal and (iii) had not been a principal.

The complainant contends that the process adopted by the respondent was inconsistent and unlawful. The complainant relies on the Labour Court decision in Galway City Partnership v O’ Hallaran EDA077 where the Court held that where the “chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria, then an inference of discrimination could arise.” It is submitted in the within case, it is clear that the complainant is better qualified for the position of principal than Mr PK, the comparator.

Discrimination on grounds of Age

The complainant cites the case of A Government Department v An Employee DEC-E-2008-004 wherein, the Equality Officer stated; “in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment of qualifications of candidates and the result of the process can in themselves give rise to such an inference.” It was further submitted that in the case of A Lecturer v A University ADJ-00003593, a lecturer succeeded in a claim of age discrimination in the context of a promotion as a younger candidate was appointed. The Adjudication Officer was satisfied there was a “greater proximity” of the complainant’s qualifications and experience to the job specification and her “comparable if not superior qualifications” meant she had met her burden of proof. The university was found not to have been clear in marking including the calculation of the marking which were found to amount to generalisations. The Adjudication Officer stated: “I cannot say that the successful candidate’s background is not relevant to the impugned post but I can conclude that the complainant’s background, qualifications and experience are more proximate than the successful candidates to the work attaching to the Deanship… but it is striking that the complainant’s work was in the exact field of Teaching and Learning. The complainant has extensive experience in the workings of the University, in the committees forming policy in the structures influencing the direction of the University.”

The complainant states that in the case of A Teacher v A National School DEC-E2014-097, a prima facie case of discrimination on age grounds was established due to the failure of the marks to reflect the significant difference in qualifications and experience in favour of the complainant. The Adjudication officer stated; “ I am satisfied that in conjunction with the significant difference in qualifications and experience which exists between the candidates and the fact that the interview board saw fit to rate both candidates as equally qualified regardless of this fact, the complainant has succeeded in establishing a prima facie case of discrimination on the ground of age in terms of access to promotion… According to the chair of the interview board, both candidates were given equal marks for qualifications because of this fact. I am unable to accept this argument. If only the basic qualification for primary teaching is relevant in this context, there is no need to award marks – a simple yes/no would suffice. Second, it militates against common sense that all that is needed to assess candidates for a senior, responsible management position is their basic academic qualification in their field.”  It was submitted that in the case of Meehan and Leitrim County Council DEC-E2006-014, a prima facie case of discrimination on age grounds was established where there was a significant difference in qualifications and experience in favour of the complainant. The selection committee there had been unable to explain how they concluded that the complainant was weaker on leadership and initiative. The complainant submits that in this matter, there is ample evidence to prove that the comparator, a younger candidate was manifestly not as qualified as the complainant for the position. The complainant states that the chairperson had stated that the comparator was not as qualified as her. She states that the chairperson has also made concerning comments and same can only be construed as unconscious bias on grounds of age.

Discrimination on grounds of Gender

The complainant states that in the case of Walsh, Jackson and Acton v Board of Management, Ballinrobe Community School DEC-E2004-042, the Equality officer stated: “Having regard to the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI 337 of 2001), the onus in the first instance is for the complainants to present factual evidence from which it may be presumed that discrimination has taken place. I am satisfied that where an unsuccessful female complainant in a competition demonstrates that she meets the advertised requirements for a position, has at least similar or superior qualifications and has considerably longer satisfactory service compared to a successful male candidate, a prima facie case of discrimination has been established and the burden of proof must shift to the respondent to show that there were reasons unrelated to gender for the outcome.” It was submitted that in addition in the Labour Court case of Co. Louth VEC v Don Johnson, the Court stated: “The mere fact that a younger employee and an employee of a different gender was promoted in preference to the complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred. It would be necessary to show that the complainant was better qualified or met the criteria for promotion to a greater degree than the younger/ female successful candidates.” The complainant states that she has demonstrated there is no discernible link on the basis of qualifications and experience in the appointment of Mr PK the comparator, a less qualified, less experienced male candidate over the complainant.

The complainant cites the case of Cooke v UCD DEC-E2010-994 wherein the Equality Officer could find “no convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as the candidates who were promoted to Full Professor.” It was found that there was no evidence that the selection process had been concluded in a discriminatory manner. The complainant states that in the within matter there is ample evidence to show that the comparator Mr PK, a male candidate was manifestly not as qualified as the complainant for the position. The complainant further states that there is evidence of vertical occupational segregation in the primary school teaching profession. It was submitted that in general, male teachers occupy 12% of teaching posts while 33% of principal posts are filled by men. In contrast, women occupy 79% of teaching posts and only 66% of principal posts are held by women. It was submitted that there are gendered patterns in career progression. These include a disproportionate percentage of males in the post of principal teacher and a higher proportion of female teachers in the unpromoted category. The complainant argues that this indicated clear bias in favour of men filling leadership positions in teaching.

The complainant cites in the caselaw in Pamela Brennan v BOM Scoil Mhuire agus Iosaf Junior School ADJ - 00018053 and the Labour Court case in Nevins, Murphy, Flood v Portroe Stevedores Ltd. [2005] 16 ELR 282 which highlighted that the motive or reason for an impugned decision may be conscious or subconscious.

Closing Submission

Counsel for the complainant submitted that the interviews were competency based with 4 main domains. It was submitted that the interview panel members were not adequately trained to undertake such interviews.  It was submitted by the complainant that the school community wanted change and fresh thinking and less exciting was continuity and stability which the panel felt was reflected by the complainant at her interview. It was submitted that 3 out of the 5 interview panel members were parents and three parents gave a difference of 39 marks vis a vis the successful appointee to that of the complainant. It was submitted that one of the parents on the panel did not acknowledge that there was a serious conflict of interest.  

It was submitted that correct guidelines in the running of such a competitive interview were not adhered to. Counsel for the complainant stated that the top two candidates were 20 years younger than the complainant and states that members of the interview panel in their testimony referred to the need for “fresh thinking” and the “modern age” which raises an inference of discrimination on grounds of age.

The respondent states that the complainant alleges that she was discriminated against on the basis of her gender and age in that she was not selected for promotion to the post of principal. It was submitted that the complainant alleges that she had superior qualifications and more leadership experience than the successful candidate and that “the only reason for the low marks is that the complainant is significantly older and female in comparison with the younger and male successful candidate”.  It was submitted that the respondent school was established in or around 1990.  The complainant joined the staff at the school in or around September 1993 and held the role of deputy principal from September 1998 to October 2006 and then returned to that role in August 2011. She was acting principal from 3 September 2018 to 3 May 2019.

It was submitted that the respondent school was one of the first Educate Together schools and therefore it operates a patron system. This means that the school is affiliated to Educate Together but it is operated by a Patron Committee. The Patron Committee is made of members of the community, in essence, they are the inheritors of the people who originally wanted to establish this school.  The Patron Committee consists of 12 people including a teacher nominee and it consists mainly of current and past parents.

Ms CS was the Chair of the Patron Committee at the material time. The then principal was retiring and as a result there was a need to recruit a new principal.   The complainant was one of 13 individuals who applied for the role. The interview panel (who also decided on the shortlisting of candidates) had to be determined. Ms CS contacted principals who were potentially independent assessors; she obtained their names from the Educate Together Head Office. The approval of the interview panel was the responsibility of the Patron Board. In this case, the interview panel was made up of five individuals:

•        Mr AN (Chairperson of respondent school Board of Management) described in the documents as Assessor 1

•        Ms CC (a former parent and organisational consultant) described in the documents as Assessor 2

•        Ms AB (Principal of a Named National School) described in the documents as Assessor 3

•        Mr TM (Principal of a Named Educate Together National School) described in the documents as Assessor 4

•        Ms CS (then Chair of Patron Committee) described in the documents as Assessor 5

It was submitted that the complainant is in essence alleging that the actions and decisions of this panel were discriminatory towards her on the gender ground.  However, 3 of the 5 members of the interview panel were female. The respondent states that the Interview panel met virtually on the 16  December 2020 and that evening considered all of the applications that had been received for the position. In order to follow all guidelines, the panel was required to open the applications at the same time so they were given access to the relevant email address that evening. The Interview Panel relied on the Educate Together Principal and Deputy Principal Recruitment Policy for National Schools and Circular 0044/2019 and Recruitment/Promotion and Leadership for Registered Teachers in Recognised Primary Schools.

The respondent states that arising out of that meeting 6 individuals were shortlisted (including the complainant, 3 men and 3 women). 

Mr AN, the Chair of Board of Management emailed all of the interview panel on the 22 December stating inter alia:

“(1) As you may have seen, invitations were sent to the shortlisted candidates yesterday evening. They will run from 0900 to 1630 on Monday 4 January, with time afterwards for discussion and scoring.

(2)I enclose possible questions, set into the selection criteria. These come out of discussions with the BoM and the Patron, and they are deliberately intended as ones which give a candidate space to express themselves, rather than having a prepared speech. Any suggestions you have would be gratefully received. We do need to turn this into a scoring sheet, so if we can please finalise by this time next week (29th), that would be great. “

It was submitted that the selection criteria for principal was based on four domains.  The candidates were marked under four domains- 25 marks for each domain. Domain One was Leading Teaching and Learning. Domain Two was Managing the Organisation. Domain Three was Leading School Development and Domain Four was Developing Leadership Capacity.  It is important to note that these domains are set out in the aforementioned Educate Together Recruitment Policy.

The respondent states that the candidates were interviewed on the 4 January 2021. They were interviewed in alphabetical order.  It was submitted that all candidates were asked the same questions and none of the questions were discriminatory. The respondent contends that none of the questions raise an inference of direct or indirect discrimination and all of the questions concerned the domains criteria and the suitability of the candidates for the role of principal of the school.

It was submitted that the Interview panel interviewed the candidates in line with the criteria established; awarded marks for the various competencies in line with the established marking scheme and recorded the notes of their interviews with the candidates. The respondent states that each interview was given approximately 45 minutes. After each interview there was a brief discussion (but no discussion about marks). It was submitted that the successful candidate (after his references were checked) was put forward to the Board of Management and approved then by the Patron Board.  He was appointed to the position.

The respondent states that the complainant finished third in the competition for the role of principal.  The candidate who came second was also a female. The complainant's final score from the five assessors was 385 marks out of a possible 500.  This was some distance behind that of the second candidate who scored 414 marks out of 500 and the Mr PK who scored 437 out of 500. The respondent states that it is noteworthy that all 5 assessors gave the complainant lower marks than Mr PK. This includes the assessor Ms AB who the complainant stated was complementary of her in her written submissions. Ms AB also gave the second most successful candidate a higher overall mark than the complainant. It was submitted that after the successful candidate accepted the role, the Chairperson of the Board of Management decided to ring the complainant as a matter of courtesy to inform her that she was not successful.

The respondent states that during that telephone call he tried to convey to her that she was and is a valued member of school community.  Mr AN attempted to outline that the successful candidate had shown a better vision for the school in the course of his interview. It was submitted that the complainant made no allegations of discrimination on age or gender grounds on this call.  The respondent states that the complainant said she knew she would not be successful as she claimed that Ms CS and Ms CC had decided that they would not want her and her association with the previous principal. It was submitted that Mr AN asked her why she had not raised this before but she did not have an answer to that question. The respondent states that Mr AN did mention the ambition that the successful candidate had shown. It was submitted that the complainant then said she didn’t apply 16 years ago for the role of principal because she was a woman and had children. Mr AN said this has nothing to do with it and he said it was ambition shown in interview that he was talking about, not about her ambition and it was about the ambition for the school that the successful candidate had articulated.

The respondent states that Mr AN asked the complainant if she wanted to raise the matter with the Board of Management and she responded no. It was submitted that there was a second conversation between the complainant and Mr AN and she indicated that she did want to raise it with the Board then. It was submitted that the complainant wrote to Mr AN by email on the 1 February 2021 stating inter alia:

“Thank you for your call on Friday, it was really helpful.

As I said during the conversation, there is only one issue for me, and that is the composition of the Interview Board. Specifically, the presence of a past parent who left the school following a formal complaint to the Board.”

It was submitted that the complainant makes no mention of age or gender discrimination in that email – her only issue is an alleged conflict of interest. The respondent states that the complainant’s dissatisfaction with the makeup of the interview panel is clear to see from her submissions. The respondent states however, such a complaint has nothing to do with gender or age discrimination. This is not a case that concerns the procedural fairness of the process, it concerns whether the decision was tainted by discrimination. The respondent states that it is noteworthy that all of the panel members scored the complainant less than the successful candidate including Ms AB (Principal of A Named National School) Assessor 3.

The respondent states that significant reliance was placed on fact that the complainant alleges that her overall marks were changed or altered by 5 points in her overall score and she expresses dismay in relation to the legibility of the interview notes.  It was submitted that there was nothing wrong or inappropriate in how the interviews and/or marking was carried out.   The respondent states that it is noteworthy that the total difference in 5 marks would make no difference to the complainant’s ranking at all. All five assessors awarded significantly more marks to the successful candidate than to the complainant. The respondent states that the notes of the interviews are detailed; how legible the notes are to others is not in and of itself, discriminatory.

Testimony of Mr AN (Chairperson of the Board of Management)

Mr AN stated that the Patron of the School (Committee of People) appointed and set up the interview panel. The complainant stated that Educate Together has no role in the appointment or staffing of panels for recruitment. He stated that 6 persons were shortlisted and called to interview, 3 females and 3 males. Mr AN stated that 4 domains are set down pursuant to Circular 0044/2019.

Domain One - Leading Teaching and Learning

Domain Two – Managing the Organisation

Domain Three - Leading School Development

Domain Four – Developing Leadership Capacity 

Mr AN stated that the interviews were held via Zoom as it occurred during the pandemic. The interviews were ran in alphabetical order. He stated that there was no deviation from the questions on the list and that all candidates were asked the same questions. Mr AN stated that the complainant came third and that a female candidate came second. Mr AN stated that the complainant’s answers at interview were less than compelling. Mr AN stated that in the broadest terms the answers the complainant gave referred to stability and continuity. He states that she had plenty of experience but that her vision for the school was significantly less exciting and less compelling than the successful appointee and that of the candidate that came second in the competition.  Mr AN stated that with regard to dealing with conflict the question was agreed “can you give an example of a conflict you dealt with outside of professional life” and this question was asked of each of the candidates. Mr AN stated that the successful candidate had more depth and breadth to his answers and gave concrete examples as to what he would do in the role of principal. Mr AN stated that the complainant’s answers were lacking in substance. He states that overall the complainant did not present a compelling case at interview.

In examination by Counsel for the respondent in relation to Ms SM’s testimony; Mr AN stated that Ms SM was not at the Board meeting in question as she was the outgoing Principal and had no role in same. He states that he informed the Board that a male candidate was the successful appointee but did not mention his age. Mr AN stated that he had two calls with the complainant regarding her unsuccessful candidature and the second call was a rehash of the first. He stated that he wanted to let the complainant know that she was not successful but as a longstanding deputy principal, she was very valued in the school. Mr AN stated that the complainant came across as distressed and he tried to be open and frank with her. Mr AN stated that the complainant indicated that the interview panel was set up in such a manner that it was stacked up against her. Mr AN stated that there was a need for a different impact and fresh thinking for the school. He stated that the successful candidate was thinking about what would be needed for the post of principal and could convey this articulately in his answers.

On cross examination Mr AN stated that the respondent school is not part of Educate Together but signed up to its Constitution.  He stated that the set up in the respondent school is different, in that, it is a Patron Committee not a professional body.  With regard to the interviews and the criteria used, Mr AN asserted that competency is not the same as experience. On cross examination it was put to Mr AN that there were three parents on the interview panel out of 5 person interview panel. It was put to him that a member of the panel, a parent, had withdrawn her child from the school as she was dissatisfied with school management. Counsel for the complainant stated that there was a conflict of interest and questioned the appropriateness of the composition of the interview panel in this regard. Counsel for the complainant also put it to Mr AN that there were issues around lack of appropriate training for members of the interview panel.

In relation to the successful appointee, Mr AN stated that while the Interview panel had his CV they did not know his exact age and in those circumstances he refutes the statement attributed to him with regard to saying “an ambitious young man aged 35” got the post.    

In response to questioning by Counsel for the complainant, Mr AN stated that certain elements of the school community, in a board meeting, had expressed the need for change.

Testimony of Mr TM (Principal of a Named School)

Mr TM has 36 years teaching experience and worked in four different schools. He has been a Principal for over 20 years. He stated that he has a lot of experience on interview panels. He would sit on 5/6 interview panels in the space of a year.  He stated that he has done extensive training on the various different issues that come up.  He also stated that he has been involved in the INTO for many years. Counsel for the complainant put it to him that the parent nominees on the panel tried to influence him and steer him a certain direction.  Mr TM refuted this and stated that the process was very professional and well organised. Mr TM stated that the successful candidate did a better interview and elaborated very well on the points raised and comprehensively teased out the issues. Mr TM stated that the successful appointee gave good practical solid examples, demonstrated a collaborative style and reiterated that the safety and well-being of the children came first.  Mr TM stated that the successful candidate shone through at the interview.

Mr TM stated that in relation to domain three and four, the successful candidate got higher marks  as he gave a cogent and clear account of how an Educate Together school should operate, in that, he demonstrated the need for the school to be child centred, was very positive and drew a lot from his own experience and was able to look at the bigger picture. Mr TM stated that the question regarding personal conflict outside of professional life levels the playing field for all the candidates.

Testimony of Ms AB (Principal of a Named School)   

Ms AB has been a principal for past nine years. Ms AB stated that she had undergone training for interviewing most recently 14 months prior to the current interview process. Ms AB stated that the successful candidate did a substantially better interview than that of the complainant. She stated that the successful candidate’s answers were well fleshed out and on point, in that, he was accurate in his answers as to what she felt the role of principal is all about and what she was currently doing in her role as principal of a school. She stated the successful appointee displayed an in-depth knowledge and understanding of the requirements of a principalship. Ms AB stated that gender and age did not feature whatsoever in the selection process. She stated that the process was clinical and there was no issue of other panel members trying to influence her.  She does not accept that the question on personal conflict could be viewed as discrimination vis a vis the complainant.    

The Law

The respondent states that the complainant alleges that she was discriminated against on the grounds of her gender and/or age.  In a claim of discrimination such as this, it is for the complainant, in the first instance, to establish a prima facie case that the decision of the Selection Board gave rise to an inference of discrimination before the burden of proof shifts to the respondent.  The three tiered test for establishing if the burden of proof shifts to the respondent is set out in the case of Mitchell v Southern Health Board [2001] ELR 201 and it has been reiterated by the Labour Court in many of its determinations since including, for example, the relatively recent case of Galway Mayo Institute of Technology v Vlad Teleanca EDA 1835.  The Mitchell test provides: It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the primary facts relied upon are proved, it is for the Adjudication Officer/Labour Court to evaluate those facts and to consider if they are of sufficient significance to raise a presumption of discrimination.  If the primary facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment then passes to the respondent.  The Labour Court in the case of Rescon Limited v Scanlan EDA 085/2008 held:

"In this case the complainant has adduced no evidence to establish a nexus between his gender and the respondent's failure to offer him the disputed post other than that a woman was appointed and he was not.  In the Court's view a mere difference in gender and a difference in treatment, in the sense that the comparator was appointed and the complainant was not, could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination."

In the case of Meehan v Leitrim County Council DEC-2006-014, the complainant alleged that he was treated less favourably than his younger colleagues in relation to promotion.  The Equality Officer held in relation to interviews and the selection process that it was "Not of course the Tribunal's function to identify the most successful candidate but to examine whether the selection was tainted by age discrimination." It was held that the bare fact that a successful candidate is younger than the complainant is not sufficient to shift the burden of evidential proof.  The respondent submits that the same is true in this case in relation to gender.

It was submitted that it is "well settled law that mere assertion cannot be elevated to the status of evidence”. It is respectfully submitted that the complainant is merely making assertions in this case. It is her position that her qualifications and experience are superior to that of the successful candidate. That is a mere assertion. The fact a complainant alleges that they have greater skills or experiences than the successful candidate is not sufficient to raise an inference of discrimination.  The Labour Court held in the case of O'Halloran v Galway City Partnership EDA 007/2007:  

"Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise… However, the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case.  Provided the chosen criteria are not indirectly discriminatory on any of the prescribed 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."

The Labour Court in the case of Health Service Executive v Jerry Selvaseelan EDA 1922referred to the case of O'Higgins v University College Dublin [2013] 24 ELR 146and held that:

"It is not for this Court to judge if the complainant should have been appointed unless the result was clearly unfair or manifestly irrational".

The respondent submits that it is clear from the complainant’s submissions that she is attempting to have the WRC review her marks under each heading and revaluate an interview that the Adjudication Officer was not present at.  It is respectfully submitted that there was nothing manifestly irrational by the appointment of Mr PK. It is submitted that the complainant is in fact asserting she was more experienced etc. than he and that therefore she should have got the promotion. The respondent submits that the appointment of Mr PK was not manifestly irrational and therefore it is submitted that it is not for the WRC to judge if she should have got the promotion. The respondent submits that the WRC’s concern is only with whether the complainant was not promoted for discriminatory reasons. The respondent asserts that in simple terms, the successful candidate in this case performed better at interview than the complainant.  It was the performance at interview and the responses to the questions raised that resulted in the complainant receiving a lower overall score than the successful candidate.  The respondent states that neither gender nor age were considerations and a fair assessment was carried out.  The respondent states that it may be argued by or on behalf of the complainant that this was a bad reason and that performance at interview should not have been the main factor.  However, this is not a case that concerns the procedural fairness of the process it concerns whether the decision was tainted by discrimination.  In this regard the respondent relies on the case of St Nathy's College v Rena Burke  EDA 1512. It was submitted that this was a case where the employee alleged that she had been discriminated on religious grounds on the basis that she had not been shortlisted for an interview for a position.  She was employed as a teacher at the respondent school.  In considering the case, the Labour Court held:

"In this case the respondent contends that the complainant was not shortlisted for the post for the reasons already referred to.  The complainant's written application form was put in evidence.  From its own examination of the written application overall, the Court is inclined to view that the criticism directed at its quality is somewhat harsh and unjustified.  However, as was pointed out by O'Sullivan J. in Mulcahy v Waterford Leader Partnership [2002} 13 E.L.R. 12, there is no principle in either law or in logic on which to hold that because a person offers a bad reason for an impugned decision, that this necessarily means that the bad reason is not the real one.  This case is not concerned with the objective fairness of the respondent's decision.  The only issue before the Court is whether the decision was tainted with unlawful discrimination on grounds of the complainant's religion or religious beliefs."

30.           The respondent maintains that the complainant can point to absolutely no facts in relation to the selection process for the post of principal that might give rise to an inference of discrimination other than that the successful candidate was, in her view, less qualified and less experienced than her.  The respondent states that it is undoubtedly the case that the complainant is entitled to her opinion on that point, but it is her opinion and it is not a fact.

31.           The respondent states that it is noteworthy that no comments were made at the interview which might infer discriminatory intent; the marking scheme cannot infer discriminatory intent; the scoring schemes and questions were determined beforehand and were gender neutral; notes were taken and the composition of the interview board was balanced (in fact, it was three females and one male).  It was submitted that the only fact that the complainant can point to is that the successful candidate was appointed and she was not.  The respondent states that as demonstrated by the Meehan and O'Halloran cases, as referred to above, that fact, in the absence of anything else, is not enough to establish a prima facie case and shift the burden of proof.  The respondent also relies on the recent Labour Court determination in The Board of Management of Scoil Mhuire agus Iosaf Junior School v Pamela Brennan EDA 2220. In this regard, the respondent submits that it should be noted that the complainant relies on the WRC decision in the within case in her submissions. However, it was submitted that the WRC decision was overturned on appeal by the Labour Court. In that case the Labour Court held:

“In summary, the Court finds that the features of the selection and interview process identified by the complainant and by which she seeks to impugn that process as having been discriminatory on the gender ground have all been cogently and rationally accounted for by the respondent’s witnesses such that the Court is fully satisfied that the candidates were ranked on the basis of their performance at interview and the quality of their answers. There is no evidence that the complainant’s gender, or that of any of the other candidates, played any role in the panel’s assessment or decision. The evidence before the Court was that the successful candidate outperformed the complainant by a country mile on the day and was, on that basis and that basis alone, selected for appointment to the post of Principal.”

It was submitted that in the case of Ballinrobe Community School v Walsh  EDA 065/2006, the decision of the Labour Court illustrated the burden of proof being discharged by the respondent where prima facie evidence of discrimination had shifted the burden to the respondent.  In that case the Court accepted the evidence given on the behalf of the respondent that the successful candidate was appointed because a selection board considered his qualities and attributes to be more suitable for the post than the complainant who was claiming discrimination. The respondent submits that the reasons for the appointment of Mr PK in this case were similar, on foot of the candidates performance at interview and the answers given to the questions asked; Mr PK was considered the most suitable candidate.

Closing Submission

Counsel for the respondent submitted that the complainant has failed to demonstrate a prima facie case of discrimination on either the gender ground or the age ground. It was submitted that the complainant did not establish a nexus in relation to her gender or age in respect of her non appointment to the principal role. Counsel for the respondent stated that there were three females on the interview panel and the complainant’s assertion that they gave her less marks on the basis of her gender does not stack up. It was submitted that the complainant had a lot of experience but that does not entitle a person to the job, if that were the case there would be no need for a shortlisting of candidates and interview process. It was submitted that some persons do better at interviewing than others, some persons can articulate the points better. In some instances nerves or a lack of preparation can be a factor. Counsel for the respondent stated that two independent members of the interview panel gave clear testimony that the successful appointee demonstrated a clear vision for the principalship, dealt with the questions very comprehensively. It was submitted that in the case of Ms AB, her evidence was that the successful candidate’s answers were on point and were exactly what she is doing as a principal on a day to day basis. Counsel reiterated the point that a lot of experience does not entitle a person to a job.  

It was submitted that the use of the word “change” by Mr AN, Chairperson of the Board has nothing to do with age discrimination but more to do with wanting a new direction. It was submitted that from the complainant’s interview she was of a mind to continue the route they were still on. Counsel submitted that with regard to changing the marks, even if they had not been changed, Mr PK would still have been the successful candidate by a wide margin. 

The matter for consideration by me is whether the complainant was discriminated against on grounds of gender and/or age arising from the decision of the respondent not to select the complainant for appointment as principal to the respondent school.

It is for the complainant, in the first instance, to establish a prima facie case that the decision of the respondent gave rise to an inference of discrimination before the burden of proof shifts to the respondent. The three tiered test for establishing if the burden of proof shifts to the respondent is set out in the case of Mitchell v Southern Health Board [2001] ELR 201. The Mitchell test provides:

(a)    It is for the complainant to prove the primary facts upon which he/she relies in seeking to raise a presumption of discrimination.

(b)   If the primary facts relied upon are proved, it is for the Adjudication Officer/Labour Court to evaluate those facts and to consider if they are of sufficient significance to raise a presumption of discrimination.

(c)    If the primary facts proven are considered of sufficient significance to raise a presumption of discrimination, the onus of proving that there was no infringement of the principle of equal treatment then passes to the respondent.   

I have considered the evidence put forward by both parties. I note that the complainant had 35 years teaching experience; she had been a deputy principal for over 20 years, had been an acting principal for over a year and had significant leadership experience, i.e. 23 years of leadership experience as a promoted post holder in the respondent school. I note that the successful appointee  was a mainstream primary school teacher and had 13 years teaching experience. He did not hold any posts of responsibility at the time of the interview. In those circumstances I find that the complainant has raised an inference of discriminatory treatment on the basis of gender and age. I am therefore satisfied that the complainant has demonstrated a prima facie case of discrimination and accordingly, the burden shifts to the respondent to rebut that case.

I note that three of the 5 member Interview panel were female. I note that the same list of questions were asked of each candidate at interview. It is noteworthy that all five members of the Interview panel awarded significantly more marks to the successful appointee. I find, upon an examination of the notes taken that they were detailed in nature.

I have carefully examined the notes taken at interview together with the testimony of three of the Interview Board members with regard to the selection of the successful appointee. In relation to the witnesses who were on the Interview Panel who gave testimony at the hearing; I found their recollection and recount of the interviews together with the rationale for the marks given to be  compelling and cogent. I find that their accounts of the interviews were consistent and they found that the successful candidate presented a better vision for the school and dealt with the questions in a comprehensive manner. The evidence of the members of the Interview panel at hearing was that the successful appointee performed substantially better in his answers to questions vis a vis those of the complainant. While I note the complainant places reliance on her overall marks being altered by 5 points; I am satisfied that the total difference in 5 points would make no difference in the complainant’s ranking in the competition. I note that all five members of the Interview panel awarded significantly more marks to the successful appointee than to the complainant. Overall, having examined the evidence adduced, I am satisfied that the members of the Interview Panel provided convincing and detailed rationale for their scoring and the outcome of the selection process. I find, based on the totality of the evidence heard, that the successful candidate was appointed on the basis of his performance at interview and the quality of his answers.

While there is a conflict in the evidence with regard to the issue wherein Ms SM stated that she was present at a Board of Management meeting and the chairperson stated that an ambitious young male aged 35 got the post, I am cognisant of the chairperson’s testimony where he stated that there was no mention of age on Mr PK’s CV and therefore he was unaware of what age the successful appointee was. In relation to the allegation by the complainant that Mr AN stated to her that the successful appointee showed that he had planned his career path to principal and this raised an inference of discrimination, in that, she took time out to rear her children and was job-sharing for a time; Mr AN refuted this and submitted that he did not use the phrase “planned his career path to principal” but he did state to the complainant that the successful appointee showed that he was thinking about what would be required in a principalship and could convey that very well in his answers at interview.

While the complainant places significant reliance on being asked a personal conflict as opposed to a professional conflict and argues that this discriminated against her on the basis of her wide and varied experience, I do not find that this is the case. I find that the list of questions were devised prior to the Interview process and all candidates were asked the same question. In those circumstances, I find there was no discriminatory intent on the part of the respondent.

Having carefully examined all of the evidence before me, I find that the respondent has rebutted the inference of discrimination raised by the complainant. In all of the circumstances, I can find no evidence that the selection process had been concluded in a discriminatory manner. There is no evidence that the complainant’s age or gender played any role in the panel’s assessment or decision. While the complainant has raised her concerns regarding procedural fairness of the process, the issue for determination by me is whether the selection process or the decision was tainted by discrimination on grounds of the complainant’s gender or age.  I am satisfied based on the totality of the evidence in the within claim that the complainant was not discriminated against by the respondent on grounds of age or gender in relation to the post of principal.

I find that the complainant was not discriminated against by the respondent on grounds of age.

I find that the complainant was not discriminated against by the respondent on grounds of gender.

Employment Equality Acts, age discrimination, gender discrimination