EDA2350

Appeal Of Adjudication Officer Decision No(s) ADJ-00025149 (CA-00031995-001).

BACKGROUND:
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 March 2023. A Labour Court hearing took place on 15 November 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Mr Damien Johnston (the Complainant) against decision ADJ-00025149 CA-00031995-001 of an Adjudication Officer under the Employment Equality Acts 1998 to 2015 (the Acts).  The Adjudication Officer held that his complaints of discrimination on the gender ground and victimisation by his employer Board of Management Ardscoil Mhuire (the Respondent) were not well founded.  The complaint was referred to the Workplace Relations Commission on 4th November 2019. The cognisable period for the purpose of the Act is 5th May 2019 to 4th November 2019. 

Background

The Complainant has been employed by the Respondent since November 2006 and worked as a Guidance Counsellor. The Complainant stated that he was discriminated against by the Respondent in respect of a promotion competition in 2018 and a further competition in 2019. It is also his case that he was victimised for raising a complaint of discrimination. The Respondent disputes that the Complainant was discriminated against or victimised.  The best candidate on the day was appointed to the job.

At the commencement of the hearing, it was agreed that some of the incidents being relied on by the Complainant were outside of the cognisable period set out above. In line with the legislation and caselaw, it was accepted that in order for the Complainant to seek to rely on a continuum of discrimination there would have to be a breach of the Act during the cognisable period. On that basis and with the agreement of both parties the Court proceeded to hear the parties in respect of alleged acts of discrimination on the gender ground and or victimisation during the period 5th May 2019 to 4th November 2019. It was agreed that the Court would issue its decision in respect of that period and if there were breaches of the Act, the Court would reconvene to hear the parties on the substantive issues and whether or not there was a continuum of discrimination. If the Court found that there were no breaches during the cognisable period, it would issue a decision to that effect and that would be the end of the Court’s role in the matter.

Summary of Complainant’s submission and evidence.

Mr Purdy SC on behalf of the Complainant stated that he has worked for the Respondent since November 2006 and was the only male teacher in the school.   Over that period of time, the Complainant had interviewed for a number of posts. In the last two competitions he was the most senior person but was unsuccessful. However, in prior competitions the senior person had always been appointed to the post. The school in question had during the relevant period never promoted a male teacher.

In and around 2018 the Respondent advertised for the vacant post of Assistant Principal. This was a permanent post. Prior to this competition all post were filled by seniority. The Complainant has since learned that the successful candidate in that competition was actually timetabled for the job before the competition was held and she has less seniority that the Complainant.

The Complainant raised a number of grievances in respect of the promotion process by email of 5th November 2018.  Arising from the grievances he raised, he was then victimised at the second interview where his seniority was ignored.

The second interview process which falls within the cognisable period was an Acting Assistant Principal role which was advertised in April 2019. On the 29th April 2019 the Complainant submitted his application for the position.  On the 16th May 2019 he was interviewed for the position. Two of the three-member interview board were the same as at the previous interview. Again, he was unsuccessful. He received feedback on the 22nd May 2019.

 On the 25th June 2019 the Complainant wrote to the Respondent voicing a number of concerns regarding the 2019 interview process, in particular the fact that the successful candidate communicated to her peers that her experience as Transition Year (TY)coordinator was critical to her success. For the previous 10 years a female teacher held that role which placed him at a disadvantage.  The Complainant believes that the questions were not adapted to reflect the fact that he was a guidance counsellor and therefore he was disadvantaged. His previous experience as a paramedic was dismissed by the selection panel, there were comments to the effect that he had limited experience which was peculiar in circumstances where the role of Junior Cycle coordinator was unilaterally taken from him, despite the fact the department was still issuing hours for that role. He felt that there was lack of recognition for individual works completed by him.

The Complainant felt it was incorrect for the interview panel to state at the commencement of the hearing that the school was an equal opportunities employer particularly in circumstances where a whole school evaluation report in 2009 had stated that there was a pronounced gender imbalance in teaching staff and very little had been done to rectify that. The Complainant also raised the fact that from 2006 to 2014 the demerit book referred to class mistress and that he had received different mileage rates to his female predecessor.

On the 18th July 2019 the Respondent responded to his grievance indicating that they would arrange a meeting to discuss same. However, the Complainant indicated he wanted a written response. On the 20th August 2020 the Respondent replied in writing advising that TY coordinator roles are voluntary and that appointments have arisen by way of discussion and suggestion at staff meetings, linked to availability and time tabling issues. In respect of the second interview, it was suggested that he appeal as set out in circular 0003/2018. The Respondent undertook to look at the mileage rate issue.

The Complainant responded and then attended a stage 1 grievance hearing on 6th September 2019. The Complainant took notes at the meeting and these notes were opened to the Court. On the 16th September 2019 the issues were referred to a stage 2 grievance hearing and on the 18th October 2019 stage 3 grievance hearing. None of the Complainant’s grievances were upheld and a recommendation was made that the issues be referred to mediation. On the 10th November 2019 six days after the complaints before the Court were submitted to the WRC the Complainant wrote to the Respondent requesting that the issues be processed to stage 4 grievance.

Mr Purdy SC stated that in respect of the victimisation the Complainant is relying on s74 (2) (f) as the protected Act which states “an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment,”.

The Complainant in his sworn evidence to the Court stated that in total he had applied for four posts. He did not mind the fact that he was unsuccessful in the first two as he knew at that time that he was not the most senior person.  In respect of the second interview in April 2019, only two people applied for the advertised post. It was a maternity leave cover. He was the most senior candidate but the other candidate a female was appointed. He stated that he received top marks for seniority and so did the other candidate. It was his submission that she should not have received top marks for seniority as she had less service than he had.

It was his evidence that the questions at interview favoured the female candidate as they were not amended to reflect the fact that he was a Guidance Counsellor.  Under leadership he tried to give an example of how he demonstrated leadership when he was a paramedic but was interrupted. In terms of the grievance procedure nothing he said was challenged therefore he took that to mean that the Respondent accepted the issues that he raised in respect of the interview process.

The Complainant stated that he felt that the comments and the marks given under some headings did not add up. The marking sheets he referred to were opened to the Court. He requested and was given feedback over the phone by Mr Brett. He had concerns about the questions in the interviews and the feed back he received form Mr Brett. He had set all the issues out in his grievance which he submitted to the Respondent.  At no time did anyone contradict what he had said, and he took that to mean they did not dispute what he had said.

In terms of victimisation, he felt he was victimised during the grievance procedure and in particular when he asked for a phone and received no response and other members of staff were supplied with phone. He also emailed about enrolling pupils on a course and asked for a link to contact students during Covid, but all his communications were ignored by the principal.

Ms Mallon BL in cross examination asked him to clarify what he states was victimisation. He stated that it was the way he was treated during the grievance procedure, that it was an unlawful act and breach of Equality and Education Act and that he was opposing those breaches. He stated that on two occasions he complained of unlawful acts post September 2018 and on 25th June 2019. He believed he was being victimised during the grievance procedure. He confirmed that he believed that the email of 25th June 2019 was what triggered the victimisation. The Complainant confirmed that he did not have an issue with the first two interviews as he was not next in line at that time. He accepted that he said that he believed it was probably ok as the other people were more senior.

Ms Mallon BL put it to the Complainant that his complaint was about seniority and not gender. The Complainant stated that it was custom and practise that the post went to the next senior candidate. It was put to him that evidence would be given that that is not actually true and that on two previous occasions named individuals who were not the most senior person were appointed. The Complainant did not comment.

The Complainant accepted that Circular 0003/2018 at section ten set out that seniority was being, and has now been, phased out. He accepted that the second interview was covered by the circular, and that he got the maximum marks for seniority. The Complainant accepted that nothing in the circular stated that the most senior person must get the post. The Complainant also accepted that seniority was also subject to suitability. 

Ms Mallon BL asked the Complainant if he accepted that there were no comments at the interview which suggested a bias towards male or female. He indicated that was correct. He also accepted that the competencies did not have a slant towards male or females, and that the questions asked at interview did not have a slant towards males or females. He confirmed that the second interview board was made up of two males and one female interviewer.

The Complainant confirmed that he believed there was a conspiracy between the members of the interview board not to give him the job. He believes he was discriminated on the gender ground and that even though Mr Brett was a stranger to the other members of the interview Board, that he conspired with them not to give him a job because he was a man. It was put to the Complainant that there is a fundamental dispute regarding his evidence of what occurred at interview and that Mr Brett and Mr Doherty will say that it is not true that they cut him off. The Complainant stated that he did not accept that, and he did not accept that the other candidate had done a better interview than he had.

In terms of being victimised during the grievance process Ms Mallon BL put it to him that he was offered mediation and turned it down, he was asked how his grievances could be resolved and he stated it was up to the Respondent to come up with a solution. These are not  the actions of  a Respondent seeking to shut down his grievance. The Complainant accepted that he was represented by his Trade Union ASTI throughout the grievance, that he had stopped making mileage claims in 2014, and that the demerit book was changed in 2014.

Ms Mallon BL opened the Complainants email of 25th June 2015 and asked him to indicate where in the email he was opposing by lawful means an unlawful act as required in his complaint of victimisation. The Complainant accepted that his email does not mention the Education Act or the Employment Equality Acts or breaches of them. The Complainant accepted that the grievance procedures as constituted at the time required that the Chairman of the Board had to be involved at stage 2 and stage 3 of the grievance procedure.

It was put to the Complainant that the phone he was looking to use was a school prepaid phone that was only used for European trips and every year they had to get a new sim card for it, and that teachers were told during Covid to communicate with students through teams. It was his evidence that he did not recall being told that they were to communicate with students through teams during Covid. It was put to him that the Deputy Principal would give evidence that she contacted him through teams.  It was his evidence that he could not recall that.

Mr Purdy SC in closing submitted that the failure during the interview process to adapt the question to reflect the Complainants position as a guidance counsellor meant he did not get a “fair crack of the whip” in terms of competing for the posts.  Mr Doherty who was involved in the first interview which the Complainant had raised issues about, should not have been involved in the second interview while those issues were still unresolved. Mr Brett by his own evidence travelled 90km to do the interview yet was never asked again to do an interview. Mr Purdy SC submitted that these inferences confirm that the outcome was predetermined in favour of the female candidate. In respect of the victimisation the Complainant’s grievances at stage 2 and 3 were chaired by the person who was on the interview board that he was complaining about.

Summary of Respondent’s submission and evidence

Ms Mallon BL stated that the school was historically, an all-girl school and they had a supply of demerit books with used the title class mistress. Those books were replaced in 2014. The Complainant was never referred to as a class mistress in the course of his daily duties. In respect of the 2018 competition, it was not a ready up. The reason the successful party had a reduced teaching schedule prior to the competition was that she held the position of planning and evaluation co-ordinator which meant she had reduced teaching hours. The Complainants role was treated the same as he too was facilitated with non-teaching hours.

The applicants were awarded marks for seniority in line with the procedures set out in the circular and he received the maximum points. The fact that he believes the other candidate should have received less marks for seniority as she had less service and less experience is just his opinion. He has not pointed to any specific flaw, or failure to comply with the Departmental circular in the calculation of the seniority marks.

The interview questions were the same for everyone and there was no discriminatory slant to the questions. Ms Mallon BL submitted that the issues in respect of mileage and class mistress on the demerit book relate back to 2014 and earlier and are clearly outside of the cognisable period. While the Complainant may have been the only male teacher at the time the fact that he was unsuccessful at interview doesn’t mean he was discriminated against on the gender grounds. The Complainants actual complaint appears to be the fact he believed as the most senior person he should have been appointed. That is not a complaint of discrimination on the gender ground.

Mr Doherty Chair of the School Board of Management at the relevant time, in his evidence to the Court, stated that he done many similar interviews over the years but not since his retirement. He confirmed that there had never been a challenge to an interview process he was involved with. In respect of the May 2019 process the Board of Management appointed an interview board which must include the school Principal, a nominee of the Board of Management and an external person.

In advance of the interview process the Board meet and selected questions from a list supplied by the JMB and decided who would ask what question. The same questions were put to everyone.  Ms Mallon BL put it to him that the Complainant’s evidence was that he was stopped from completing his answers and that Mr Brett was aggressive in his questioning and would not allow him to answer.

Mr Doherty stated that he did not recall that happening at all. As an interviewer you try to get the best out of people, but sometimes candidates stray, and you have to try and bring them back on track.

His notes show he did not write much under some headings but that was because they were the areas, he was asking questions on.  The interview lasted about an hour. He felt the Complainant was an ok candidate but that the other candidate was outstanding in terms of answering the questions and giving examples and that was reflected in his marking. Ms Mallon BL put it to him that the Complainant felt there was a conspiracy not to give him the job because he was a man. Mr Doherty said that was preposterous that he did not have any bias towards anyone, he was looking for the best candidate for the job. He confirmed that nobody tried to influence him, and he had no issue with a male teacher teaching in an all-female school.

In terms of the grievance process the Board of management at his meeting on the 18th October 2019 agreed to go to mediation, but the Complainant would not agree to go. He kept saying it was up to the Chairman to come up with a resolution. The grievance procedure was not shut down, but it stopped when he referred the issue to the WRC.

In response to a question from Mr Purdy SC under cross examination Mr Doherty stated that the interview Board met in April to agree the questions, and at that meeting it was agreed that Mr Brett would give feedback. The format for the interview in 2018 and 2019 was the same. It was put to him that on the basis that the Complainant had raised issues in respect of the 2018 interview that he should have stepped down as there were only two candidates. Mr Doherty stated that at the time he did not feel the need to step down but in hindsight maybe he should have. There was no obligation to modify questions. In the 2018 competition he has suggested linking the question to the CV, that was based on something he had picked up at training course.  However, they did not do that in 2019, and it was not a mandatory requirement.  It was evidence that he could not remember the specific question Mr Brett asked about the leaving certificate, but he felt all the questions were capable of being answered by all of the candidates.

The next witness for the Respondent was Mr Brett who informed the Court that he was the independent person appointed to the interview board and was also the Chairman of that board. He had been a teacher and a principle and had retired in 2013. Since then, he had sat on a number of boards of management and chaired a number of interview boards. It was his evidence that he could do between 50 and 80 interview boards in a year and there had never been a complaint or an appeal in respect of any interview board he has sat on.

Mr Brett denied that there was any conspiracy not to appoint the Complainant based on his gender. He confirmed he only met the third person on the interview board at the pre interview meeting and that nobody and asked him not to appoint the Complainant.   It was his evidence that he had not stopped the Complainant from answering a question but that there is only 5/6 minutes allocated per question so sometimes you do try to move people on. You can also interrupt sometime to try and bring focus to the response.  In respect of the Complainant not being allowed to give example arising from his time as a paramedic. He denied he ever said “yeah yeah yeah” but he did note that the example was on his cv and asked for another example.

Mr Brett also denied that he cut the Complainant short and folded up his papers. The formula he always follows is to ask if the Complainant had anything additional to add and he definitely would not have collected up his papers. Overall, the successful candidate scored higher than the Complainant in a number of areas as she did a better interview.

Mr Brett confirmed that he gave feedback to the complainant but denied that he had told him he would have gotten the job if he had held the TY co-ordinator role. It was recollection that he had said that the Complainant needed to get more involved in school activities and gave an example of setting up a school choir or of being TY Co-ordinator.   It was his evidence that he did not give the Complainant lower marks because he was a man, any suggestion that he did was absurd.

Under cross examination Mr Purdy SC asked Mr Brett who had asked him to sit on the interview board. He stated that he thought it was the school Principal and confirmed that he has not been asked since by the principle to sit on an interview board. He confirmed that he was not aware that there were complaints in being in respect of an earlier interview process. He had no recollection of questions being modified not had anyone given him a direction to amend any questions. Mr Brett denied that he had interrupted the Complainant when he was trying to answer a question or that his questions were biased against the Complainant. Mr Brett restated that he completely refutes the allegation that he said yeah yeah yeah and or bundled up his papers. Mr Brett stated that he did not know either candidate.

The final witness for the Respondent was Ms Hynes who was Deputy Principal since 2005. Ms Hynes disputed that it was always the most senior person who got the job. It was her evidence that competitions were always held and that on at least two occasions that she was aware off, apart from the Complainant’s competitions, the most senior person did not get the job.

Ms Hynes stated that on the 18th March 2020 the Complainant emailed looking for a phone and group email so he could keep in touch with students. The phone that he is referring to is an old brick phone that is used for parents to contact students when they are on the European trip. When the school went into lockdown everyone was told to set up a team’s group for their classes. Teams was felt to be they best way to communicate. Ms Hynes evidence was that she set up a 6th year teams for the Complainant so he could communicate with the students and that during the period she communicated with the Complainant by email.

On 1st May 2020 the Complainant emailed the principal regarding Leaving Cert Applied (LCA) students not engaging and she worked with him in respect of that to resolve the issues. They later purchased laptops for some of the students using the digital grant system. All the issues raised by the Complainant at that time were addressed but not necessarily directly by the Principal.

Under cross examination Mr Purdy SC put it to her that there was no evidence supporting what she said in respect of people being promoted who were not the most senior and when this was supposed to have happened.  Ms Hynes stated that she had reviewed files in the school but had not brought the paperwork with her. To the best of her recollection, one was before the Complainant’s competition in 2018 but they other one might be after that date.

Ms Mallon BL in closing submitted that the Complainant’s complaints are all about seniority because he believes as the most senior person at the time, he should have gotten the job. The Complainant is asking the Court to buy into his conspiracy theory. The evidence that he is seeking to rely on to support this conspiracy theory is full of unproven assumptions and presumptions which are not enough to meet the requirements of the Act.

The Complainant is arguing that the questions did not suit a guidance counsellor and that the questions should be adapted to suit each teacher that applies. However, he puts forward no basis to support this argument.  He also fails to address the fact that a guidance counsellor can be male or female and his own evidence that his predecessor was a female.

In respect of his victimisation complaint the Complainant has failed to identify what unlawful act he has opposed by lawful means in line with the section of the legislation s74(2) (f) which he chose to rely on.

The applicable Law

 Section 6 of the Employment Equality Acts 1998 to 2015 states :

[(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

Section 74 of the Employment Equality Acts 1998 to 2015 states:

[(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

 Section 85A of the Acts, Burden of Proof states:

(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Discussion

It is for the Complainant in the first instance as set out by this Court in Mitchell v Southern Health Board [2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies.

In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “ Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are, will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. 

In respect of his complaint of discrimination on the grounds of gender arising from the fact that he was not appointed to the assistant principle post, the Complainant seeks to rely on the fact that he was the only male teacher in the school at the relevant time, and that he was employed in the role of guidance counsellor.  The mere fact that the Complainant was the only male teacher is not in and off itself sufficient to raise a prima facia case of discrimination. The Complainant also sought to rely on what happened during the interview process, highlighting that the questions were not appropriate for a guidance counsellor, and his belief that he should have been appointed because he was the most senior candidate. The Complainant did not make a case that his seniority was linked to his gender. It was accepted by both parties that seniority was based on years’ service. The calculation of seniority for the purpose of the interviews was done in accordance with a formula provided by the Department. The application of that formula or the manner in which it was applied in this interview process was not challenged by the Complainant other than his submission that he felt the other candidate should not have received the same marks as he did for seniority. No submission was made to suggest that the use or application of that formula was discriminatory in respect of male candidates.

While the Complainant linked his failure to be appointed at interview to his role of Guidance Counsellor there was no evidence before the Court to show that Guidance Counsellor was a predominantly male position or to link in any way his role as Guidance Counsellor to his gender. The mere fact that he was the only male teacher and Guidance Counsellor at the relevant time is not in and of itself sufficient to raise a prima facia case of discrimination.

Under cross examination the Complainant accepted that there were no comments during the interview that would suggest a bias towards males or females. He also accepted that the competencies used in the process did not have a male or female slant and that the questions asked at interview did not have a slant towards males or females. Taking all of these facts and the Complainant’s own evidence into account, the Court concludes that the Complainant has not established a prima facia case of discrimination on the gender ground and therefore his complaint must fail.

In respect of complaint of victimisation, the Complainant identified the protected Act that he was relying on as falling under s74 (2) (f) of the Act which states.

“an employee having opposed by lawful means an act which is unlawful under this Actor the said Act of 2000 or which was unlawful or any such repealed enactment,”.

In his evidence to the Court, the Complainant confirmed that he was relying on his email of the 25th June 2019 as being the protected Act. Under cross examination by Ms Mallon BL the Complainant accepted that the content of the email that he was seeking to rely on, did not indicate opposition of an unlawful Act by lawful means, as required.

The Court having considered the submissions and the evidence before it concludes that the Complainant did not carry out a protected act and therefore could not have been vicitimised for same. On that basis this complaint must also fail.

Determination

The Court determines that the Complainant has not established a prima facie case of discrimination in respect of promotion on the grounds of gender. Nor has he established a prima facie case of victimisation.  The appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
C0R	______________________
2 January 2024	Deputy Chairman