Complainant

Respondent

Parties

Monica Torras Perez

Gorey Educate Together Secondary School

Representatives

Javier Fernández Torres

Claire Bruton BL

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-00057999-001

31/07/2023

The academic year 2023 – 2024 was the third year of operation for the respondent’s secondary school.  This complaint concerns a vacancy for a fixed-term job as a teacher of PE commencing in September 2023.  In accordance with the Department of Education circular 0024/2015, fixed-term positions must be openly advertised.

The complainant worked in the school for the previous academic year, 2022 – 2023, as a teacher of PE and Spanish.  Although she is a native speaker of Spanish, she is not registered with the Teaching Council to teach Spanish.  Students who studied Spanish in first and second year are due to sit the Junior Certificate in June 2024 and the management decided to recruit a qualified teacher of Spanish.

The respondent’s submission states that the school principal encouraged the complainant to apply for the fixed-term role of PE teacher and that the deputy principal had discussions with her regarding basketball competitions that would take place in the 2023 – 2024 academic year.  The complainant applied for the job, but she was not appointed.

On the form she submitted to the WRC on July 31st 2023, the complainant claims that, by not appointing her to the fixed-term role of PE teacher, she was discriminated against on the ground of her age and race.

Submission to the WRC on the e-Complaint Form

On the form she submitted to the WRC, the complainant said that, during the school year from September 2022, she undertook her role as a teacher of Spanish and PE and she actively took part in the life of the school.  She was involved in many activities, including the International Day of the Mother Tongue.  She was in charge of four basketball teams and she went on a school trip abroad, having been requested to do so by the principal.  During Active School Week, she took a leadership role by organising four days of activities, helping the school to retain its Active School flag.  She designed the student award certificates and developed a PE policy.  She made PE equipment to comply with the Junior Certificate curriculum.  She organised lunchtime basketball leagues, which did not go ahead because of lack of support from the management.

During the school year, management discussed with the complainant activities and plans for the 2023 – 2024 academic year, making her feel that she would be involved next year.  She said that it seems unethical to have these discussions with her and then to exclude her. 

The complainant said that the criteria for interviewing a teacher who has worked in the school was not clear.  She said that other teachers suggested that the interview was simply a formality.  At the interview, she said that the leadership question that is usually asked was omitted.  She said that the interview “didn’t feel right.”

Although she was told at the interview that she would hear about the outcome the next day, she got no news until two days later, on June 22nd.  When she received the email from the principal telling her that she was unsuccessful, she replied and asked for an explanation.  She was informed that the successful candidate scored higher in the interview.  A copy of the emails was submitted in advance of the hearing.  When she asked for her interview score and the scores of the other three candidates, the principal sent her her own scores, but not those of her competitors.  She then sent another email saying that she was disappointed, but she got no reply.  On July 2nd, she sent an email seeking an appointment in another Educate Together School. 

The complainant claims that her treatment by the school means that she has lost an opportunity to become a permanent teacher.  She also claims that she has suffered “moral damages.”

Evidence of the Complainant

In her evidence, the complainant said that she needs to understand the process.  She said that she felt that “something was off” at the interview.  She said that, up to the point when she was not appointed to the job of PE teacher in June 2023, she thought she was a good teacher.  She said that the interview scores do not show all the work that she did in the 2022 – 2023 academic year.  She said that she worked during the school holidays and she had to put a programme in place with no equipment.  She encouraged students to participate and she helped them to overcome their fear of failure.  She said that children who previously refused to do PE were now participating and the participation rate in the school was 99%.

The complainant said that, in her view, the interview doesn’t prove anything.  She said that she is not Irish and she is not involved in the GAA and she feels that she was used.  She was never told that she wasn’t a good fit for the school.  She said that she feels “bullied by omission.”  She said that she would like to go back to teaching, but her confidence has been damaged.  She said that she doesn’t understand why she didn’t get the job and she feels discriminated against because another person was appointed. 

When the school confirmed the name of the person who was appointed to the fixed-term job of PE teacher, the complainant said that she did an internet search and she found that he is a GAA player who taught at a particular school.  She claims that the principal and vice-principal knew the successful candidate and she thinks that they would rather have an Irish person teaching PE.

Concluding her evidence, the complainant said that she thinks that she was failed by the process.

Statement of December 12th 2023

Following the hearing on December 6th 2023, the complainant sent a supplementary submission to the WRC on December 12th.  In this document, she complained that the notes and scores of the four candidates were provided to her the day before the first hearing on November 29th.

In this December 12th document, the complainant said that she needs to understand “the reasoning of the process” and why she has not been selected.  She said that she considered herself a great PE teacher, able to engage and build relationships with students, adapting lessons to their needs with creativity and hard work.

The complainant said that she tried to comply with the learning outcomes of the different strands of the curriculum specifications for PE and, to do this, she spent her personal time making equipment to offer the students the possibility to experience the full range of activities in the curriculum.  She encouraged the students to participate and try new things, helping them to overcome their fear of failure and providing tools so that they could embrace a healthy lifestyle.  Participation rates in her classes were up to 99%.

The complainant said that she feels discriminated, despised, used and “bullied by omission” when her emails were ignored when she was seeking an explanation as to why she was not selected.  She said that her confidence is damaged to the extent that she felt that she couldn’t apply for any teaching positions.  During the year that she worked in the school, she was never told that she wasn’t a good fit and, on the contrary, she said that she was reassured many times.

After more than eight years of teaching in Spain, and eight years in Ireland, and a total of 26 years of working in education, the complainant said that she loved every minute of it and she feels she deserves a permanent position.

In this document, the complainant included quotes from messages she received from her one of her colleagues, in which the colleague sympathised with her when she wasn’t appointed to the job.  In her text message, this person expressed her view that the complainant would be “a huge loss to the school.”

The complainant referred to the submission made by Mr Torres at the hearing on December 6th 2023, when he asked the respondent to justify the interview scores.  She referred to my direction that, before hearing evidence from the school, the burden of proof is on her, as the complainant, to set out the basic facts that show that the failure to appoint her was rooted in discrimination.  The complainant said that the respondent gave no information about the experience of the other candidates and that this leaves her in a helpless situation.  She said that she can prove her experience not only outside the school but in the work that she did when she was employed in the 2022 – 2023 academic year.  She said that her experience was not considered.

The complainant said that her review of the notes of the interviews indicates that she answered the questions in a similar manner to the successful candidate, but she scored less.  Also, the ages of the candidates were not provided, and she asserted that an application form always asks a candidate to provide their date of birth.

Summary by Mr Javier Fernández Torres

On behalf of the complainant, Mr Torres referred to the notes of the interviews for the job of PE teacher which were held on June 20th 2023.  He said that, in his view, the selection process “seems irregular” and the evaluation process doesn’t make sense.

Mr Torres said that “all the proof is in the hands of the school” and that the notes provided to them do not show the age of the candidates, and this makes it impossible to prove that discrimination occurred.

After the hearing on December 6th 2023, the complainant sent correspondence to the WRC in which she asked the respondent to provide details of the experience, age and nationality of the successful candidate.  The complainant said that this is relevant to prove that discrimination occurred and will prevent me from reaching a conclusion based on unfair procedures.  She asked for the hearing to be resumed so that the respondent can justify the scores given to the other candidates.

Summarising the respondent’s case, Ms Bruton said that the candidate who was appointed to the fixed-term job of PE teacher in June 2023 was ranked second in the interview scores.  The candidate with the highest score took a job in another school.  The complainant’s score placed her fourth in the list.

Ms Bruton said that the school is required to advertise every fixed-term vacancy and, although the complainant had been working in the school for one year, she could not be offered another fixed-term job without going through a selection process.

Ms Bruton argued that the complainant’s case does not meet the threshold of discrimination on the race ground and the fact that the successful candidate is a local or a member of the GAA is speculative.  She said that the candidates were not required to provide their date of birth and the respondent does not know the age of the successful candidate. 

Ms Bruton said that no one is disputing the work that the complainant did during the 2022 – 2023 academic year and it is accepted that she had a good relationship with the principal and vice principal.  However, she appears to be seeking a decision that she should have been ranked first in the interviews.  Ms Bruton submitted that my job is to determine if there is any irrationality in the decision not to appoint the complainant.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015. 

…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…

At subsection (2)(f), the “age ground” is listed as one of the nine discriminatory grounds.  The “race ground” is listed at subsection (h).

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, at the interview she attended on June 20th 2023, for the fixed-term post of PE teacher, she was treated less favourably because of her age and nationality.

At the opening of the hearing of this complaint on November 29th 2023, the complainant said that she was “not applying for discrimination.”  In her evidence at the hearing, she was uncertain if she was discriminated against.  Having listened to her evidence, it is clear to me that the believes that she was treated unfairly because no consideration was given to her experience of working in the school for a year, and no marks were awarded for this at the interview.  Conversations with other teachers may have led her to believe that the interview was a formality and that she was likely to be offered another fixed-term contract.  This would build towards the requirement for four years of service to qualify for a contract of indefinite duration.  It is understandable that she was disappointed when she wasn’t selected and I have no doubt that she was extremely upset when she was informed that she scored less than the three external candidates.

For this complaint of discrimination to succeed, I must find that, on the balance of probabilities, because of her age and her nationality, the respondent treated the complainant less favourably than a younger person or a person who is not from Spain.  In the appeal to the Labour Court of Mary Margetts v Graham Anthony & Company Limited[1], Ms Margetts argued that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant to the case we are considering here:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

For me to find that, on the balance of probabilities, the complainant was discriminated against because of her age or her nationality, she must present facts that show that she was more qualified, more skilled or more experienced than the person who was appointed and, she must show that, on these objective grounds, she was more suitable for the job.  She has not provided any evidence that she was a more suitable candidate, and she has based her claim on the fact that she worked in the school for the previous academic year.  I accept that anyone in her position would assume that this experience counts for something.  However, the policy of the Department of Education is, when a fixed-term job comes up for renewal, every applicant, including any teacher who worked in the job previously, is assessed based on objective criteria.  Apart from any connection she could make between her experience in the school and the questions asked at the interview, the fact that the complainant was employed for the previous academic year seems to have made no difference to how she was assessed.

Every year spent on a fixed-term contract is a step towards a permanent job and I understand how disappointing it is for a teacher who has worked for a year in a school to be rejected in an open competition.  The complainant’s case is that she was treated unfairly because she worked hard in her first year in the school and this was not considered in her interview scores.  Her argument is that she was discriminated against because the external candidates were scored more favourably.  It is evident that the external candidates received higher scores, but the complainant has not presented any evidence to show that the external candidates were less suitable than her, and specifically, that the successful candidate was less suitable. 

Conclusion

I have considered the primary facts set out at the hearing by the complainant and I am not satisfied that she has shown that the decision not to appoint her to the fixed-term job of PE teacher in June 2023 was because she is older than the successful candidate, or because she is from Spain.  I find therefore, that the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant has not established the primary facts which show that she was discriminated against on the ground of her age or her race and, for this reason, I decide that this complaint is not well founded.

Discrimination, burden of proof