Complainant

Respondent

Parties

Sandra Houlihan

Limerick & Clare Education & Training Board

Representatives

  A Personal Representative

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058638-001

04/09/2023

The Complainant alleged there was age discrimination in the selection process when she applied for the post of a Teacher.

The Complainant alleged age discrimination in the recruitment process at Limerick & Clare ETB. The Complainant alleged this directly contravenes the Equality Act 1988, which prohibits discrimination on various grounds, including age.

Under the Equality Act 1988, it is illegal for employers to discriminate against individuals based on their age during the recruitment process. Sections 5 and 6 of the Act specifically address age discrimination, stating that it is unlawful to discriminate against individuals on the grounds of age in various aspects, including recruitment, terms and conditions of employment, training, promotion, and dismissal.

While broadscale discrimination is hard to prove the Complainants personal experience will highlight bias in support of this complaint.

Interview and Selection Process: If there is evidence that older candidates are consistently overlooked or face biased interview questions based on their age, it may be indicative of discriminatory practices. Such actions would breach Section 6 of the Equality Act, which addresses discrimination in employment.

Disparate Impact: If statistical analysis or other evidence suggests a pattern of younger candidates being consistently favoured over older candidates without a justifiable reason, this may further support a claim of age discrimination.

Given the fact that this organization, the LCETB, is in fact a state supported organization and by its own data, is the largest single employer of post primary teachers in the counties of Limerick and Clare. As such this constitutes a monopoly in the employment opportunities in the region with almost 50% of available positions in this region are managed through this organization and therefore singlehandedly determines the career paths and viability of the teaching population within the region.

Interview Grading Process

The Complainant has worked within the LCETB system for 7 years - 2016-2023 and during that time she has applied for 30 different positions, on average about 4 per year. During that time she was shortlisted for 9 interviews, approximately 2 per year. The LCETB interview process is typically conducted on a panel basis whereby single or multiple positions are on offer for the shortlisted candidates.

During this time the LCETB has maintained a similar grading policy — 4 categories that make up a  total ranking score with the highest being awarded the position.

Professional Qualifications — 10%

Teaching experience — 10%

Interpersonal Skills — 20%

Capacity to contribute to the overall development of the learning organization including relevant experience - 60%

In addition, as per the "Recruitment and Selection Policy and Procedure policy'; 16th March 2016.Notes in section 11.4 on Interviews;

“The objectives of the selection interview are to:

Select the best candidate for the position where that candidate is deemed appointable.

Conduct the interview in a fair equitable and professional manner.”

So in summary, direct teaching skills (qualification & experience) in a subject area is 20% and the remaining 80% is as vague and subjective as one needs to be in a 30min interview.

 It was the Complainants assertion that a score weighting like this this is intentional in order to deliver desirable or predetermined outcomes and not necessarily the best candidate. The Complainant raised the following questions;

Why would such a large score be allocated to a subjective criterion if one is truly seeking the best candidate in education?

With such a weighting towards teaching "intangibles", and the goal of conducting an interview in a fair equitable & professional manner what cross checks are in place to ensure that these interviewers consider all of the interviewee's information?

Interview Scoring

The Complainant submitted a table of the scoring received on the candidate over a six-year period. Supported by individual sheets. This table was provided to highlight the following:

Randomness of the scoring— even on interviews that were only weeks apart.

Non Role specific, Criteria 3 & 4, that represents 80% of the overall score, varies the most.

The key point of the Table was that the Complainant was interviewed for 10 posts and her score on “Capacity to Contribute to the overall development of a learning organisation including other relevant experience” varied considerably as follows;  Scores in the range of

                                                      30-39 range Interview Evaluation; 4

                                                      40-49  range Interview Evaluation; 4

                                                      50-60  range Interview Evaluation; 2

The Complainant was unsuccessful in all 10 applications.

Specific to the most recent interview scoring the Complainant received, noted the score for Criteria  4, of 45. Below is a short list of what the Complainant would consider contributing factors to criteria 4 and shared prior and during the interview process.

Led The Green Schools Initiative in Colaiste Mhuire Askeaton, achieved their first flag for the 86 school in 2019-2020 (Volunteer)

Developed an outdoor garden in Colaiste Mhuire Askeaton 2018-2019 (Volunteer

assignment)

Fundraising for Make a Wish Foundation- donations achieved 1,200 euros with students

Involving designing a wishing tree and bake sales. (Volunteer assignment)

On the Curriculum Leaders Team in Hazelwood College, 2022-2023 represented the school 92 at ETB meetings (Volunteered)

Applied and secured an off-site Biology Practical for 6th Year students in UL 2022-2023,limited number of schools accepted for this program. (Volunteered)

Developed and maintained a school wide sustainability program-Plant based living walls around Hazelwood College 2022-2023 (Volunteered, unpaid)

Coach of Senior girl t s football team in Hazelwood College 2022-2023

While 45 may in fact be a very high score in the LCETB ranking but it wasn't sufficient to outscore another candidate. The surprise to the Complainant was that this candidate had graduated 2 years prior and had 1 year of maternity leave work experience and the second year in Hazelwood, supporting general substitution (hence her familiarity). While a capable teacher it is hard to envisage a higher ranking than the Complainant given the structure of the scoring process.

Unable to reconcile this and explanation was requested from the LCTEB to which the Complainant received no reply. If the system is fair and non-discriminatory then how can a candidate with higher professional and teaching experience difference as well as a multitude of additional contributions made to the school as listed above not scored higher. The obvious explanation is that that some intentional discrimination influenced the outcome.

Placement History

A teaching graduate (1995) the Complainant taught in Ireland for 2 years before taking her skills to the US in 1997. She returned in 2016, with 20 years' experience and has since engaged with the LCETB and surrounding region for relevant employment opportunities. Engaging with the current LCETB recruitment system the Complainant has never emerged as the successful candidate despite her level of experience and extra-curricular contributions to various schools within. Overcoming these obstacles, she still found herself gainfully employed by various schools within the system. This was mostly attributed to her personal reputation and experience as the engagement was influenced by respective principals. The Complainant submitted a table detailing recent employment history in Ireland since 2016 and the nature of the role. This detailed seven various role at an average of 22 hours per week. At face value, the LCETB authority deems the Complainant capable of fulfilling a temporary assignment, substitution, maternity leave, job share etc, and in some cases retain for the following year but never good enough for the interview standard. The Complainant holds excellent references from all such engagements and her hiring to open positions is a testament to that. It is ironic that the LCETB  system of recruitment however has never deemed the Complainant a preferred candidate in 30 applications and 9 interview cycles over 6 years. The Complainant alleged that it seems that outcomes are predetermined and therefore the LCETB does not operate and truly equal opportunity recruitment process and instead have one that is structured for intentional manipulation as they see fit. This is at its core, discriminatory.

Cases like the Complainant's ordinarily would go unchallenged because little would be known about the successful candidate and the unsuccessful candidate would not challenge the system. However, on this occasion it is not the case.

Qualified and skilled educators are not afforded the same norms as those in other industries. To achieve consistent employment, they must be granted a contract position and interview for that same position for three years consecutively before achieving a status that other industries achieve in 6 months. All the while Government appointed ETBs like the LCETB, get to dictate whether or not a candidate will achieve this —a break in the cycle will restart the process. It is why it is imperative to have a fair and non-discriminatory recruitment system. If the LCETB by their own policy goals is a process that one yields the best candidate, it is hard to see that in this case.

The Complainant suggested that possibly the LCETB can share more detail on this case to defend their result and possible statistics  that support the hiring of teachers of equal proportion in the various age groups.

The Complainant stated that many had told her not to challenge the system or file a complaint with the WRC, as to do so would be waste of time and detrimental to her career. She stated she we needed to trust our institutions and challenge wrongdoings to promote change and that ignoring supports the status quo.

(Note; Due to some Technical difficulties the Tables provided could not be shown in this summary but have been summarised and considered by the Adjudicator).

The within claim by the Complainant against her former employer, Limerick and Clare Education and Training Board  (hereinafter referred to as ‘the Respondent’) and is brought under the Employment Equality Act 1988 wherein the Complainant alleges that she was discriminated against on the grounds of age in getting a job.  

Background to the Respondent. 

Limerick and Clare Education and Training Board is the state education and training authority for the Limerick and Clare region in Ireland. It is one of 16 statutory regional education authorities established by the Education and Training Boards Act 2013. It was created following the amalgamation of three Vocational Education Committees, which provided post-primary, adult and community education in Limerick City, County Limerick, and County Clare since 1902. 

Background to the Complainant

The Complainant is registered with the Teaching Council of Ireland for the following subjects: Post – Primary Full Registration for Biology (Science). The Complainant has been employed by the Respondent on various contracts since 2017 as follows;

– Substitution work throughout the year in Coláiste Mhuire, Askeaton, Co. Limerick. Appointed from LCETB Substitute panel

– Substitution work throughout the year in Coláiste Mhuire, Askeaton, Co. Limerick.

Appointed from LCETB Substitute panel.

– Fixed term pro rata contract for 11 hours per week in Coláiste Íde agus Iosef, Abbeyfeale, Co. Limerick. 

The Complainant applied for a Specific Purpose Contract  (post reference 007644) Biology and Science Maternity Leave Cover for 22 hours per week in St. Anne’s Community College, Killaloe, Co. Clare and was ranked 3/4 candidates successful after interview and placed on a panel.  the Complainant was offered the position in Abbeyfeale from this panel.

Specific Purpose Contract for Maternity Leave and Parental leave for 22 hours per week from 28/08/2020 to 19/03/2021 in Coláiste Mhuire, Askeaton and casual sub for April and May. the Complainant applied for a Resource position reference number 008817, a Specific Purpose Contract for 11 hours Jobshare in Coláiste Íde agus Iósef, Abbeyfeale and was ranked 5/6 candidates panelled after this competition. the Complainant was offered the position in Askeaton from this panel. Casual sub for April and May.

 Specific Purpose Pro rata contract to cover a Jobshare for 11 hours per week from 01/09/21 to 31/08/22 and a Fixed Term Pro Rata Contract for 3 hours 20 minutes per week for 04/10/2021 to 21/08/2022. the Complainant applied for this advertised post for A Specific Purpose Contract to cover 11 hour Jobshare in Hazelwood, Dromcollogher, Co. Limerick and was ranked 18/18 candidates that were panelled from this competition. Candidates ranked higher than the Complainant either refused or were not available as HR made offers based on this rank order.

In 2021 the Complainant also applied for position reference number 009844, Biology , Science & Animal Biology a Specific Purpose Maternity Leave 22 hour per week contract in Coláiste Chiaráin , Croom and was ranked 5/5 panelled candidates after this competition.

 Specific Purpose Contract to cover Maternity Leave, Parent’s Leave and Parental Leave for 22 hours per week from 05/09/2022 to 02/06/2023.

The Complainant was appointed from LCETB substitution panel for this post. The person that the Complainant covered the Jobshare arrangement for in 2021 in Hazelwood College, Dromcollogher went on Maternity Leave, Parent’s Leave and Parental Leave in 2022. 

Background to the complaint

The Complainant refers in her submission to 9 different interviews / job applications however there is no named comparator provided in relation to all but 1 of these;  reference no 013436. On that basis this submission will deal only with the selection process around this interview. However it should be noted that all interviews are governed by the same circular and all interviewers receive the same training.

In 2023 the Complainant applied for a post of teacher of Science & Biology, reference number 013436 in relation to four vacancies in the following schools:

Post 1: Specific Purpose Pro Rata Contract to cover a Career Break for 22 hours per week in Hazelwood College, Dromcollogher, Co. Limerick

Post 2: Specific Purpose Pro Rata Contract to cover a Career Break for 22 hours per week at Mungret Community College, Limerick City

Post 3: Specific Purpose Pro Rata Contract to cover a Job Share for 11 hours per week at Coláiste Chiaráin Croom, Co. Limerick. This post was withdrawn prior to shortlisting and interviews as the post was no longer viable.

Post 4: Specific Purpose Contract to cover Parental Leave for 5 hours per week in Hazelwood College Dromcollogher, Co. Limerick

72 applications were received for this competition. Applications received were shortlisted and 18 applicants including the Complainant were shortlisted for interview. Interviews were scheduled for Wednesday 21st and Thursday 22nd June, 2023 and were conducted through Zoom. 

The interview board composition was as follows:

Ms Susan Garrahy, Chairperson, LCETB Representative

Mr James O’ Shaughnessy, Education Expert and Deputy Principal Coláiste Chiaráin Croom

Mr Liam O’ Mahoney, Personnel Expert and Principal Mungret Community College .

17 of the 18 shortlisted candidates presented for interview. One candidate withdrew prior to the interviews. 

LCETB conducts competence based interviews and the candidates were assessed across the following areas and the following marks were assigned to each area;

Professional qualification (10 marks)

Teaching experience (10 marks)

Interpersonal and Communication Skills ( 20 marks)

Capacity to contribute to the overall development of a learning organisation including other relevant experience (60 marks) (Interview Evaluation forms Attached.)

LCETB interview panel member’s complete competency based interview training with LCETB prior to being placed on the interview panels that LCETB draw from for interview boards and are highly competent interviewers.   

The same line of questioning was used for all candidates for this competition and the conditions of interview such as interview duration etc. were the same for all candidates.  (Interview notes for Board Members was provided) 

Candidates were awarded marks under each of the assessment areas. The selection board then placed the recommended candidates in rank order. Nine Candidates were recommended by the Selection Board to be placed on the panel from this competition including the Complainant and eight candidates were not successful. The Complainant was ranked sixth after this competitive process and was placed on the panel. Individual interview evaluation forms were provided along with guidelines of the levels within each of the criteria.  

HR on receipt of the outcome of interview then proceeded to offer the advertised positions to candidates based on this ranked outcome. In this case candidates that were ranked higher that the Complainant were offered and accepted the posts. the Complainant remains on this panel which is in place for the academic year 2023/2024 for these subject areas.

LCETB refuted any allegations of discrimination on behalf of the interview board or LCETB in this competitive process.  The Complainant’s professional qualifications and teaching experience were recognised by the interview board. The Complainant achieved 8/10 marks for her professional qualifications and 10/10 marks for her teaching experience. the Complainant’s marks for this competition are as follows:

 Relevant Legislation & Caselaw

Section 6 (1) 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—

exists,

existed but no longer exists,

may exist in the future, or

is imputed to the person concerned,

Section 6 (2) provides that as between any two persons, the discriminatory grounds are “(f) that they are of different ages, (in this Act referred to as “the age ground”)”

Section 82 of the Act states the following;

“The maximum amount which may be ordered by the Director General of the Workplace

Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be— (a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

104 times the amount of that remuneration, determined on a weekly basis,

104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

€40,000, or

(b) in any other case, €13,000.”

The within claim is in relation to access to employment and so the maximum allowable compensation is €13,000. 

Prima Facie Case of Discrimination & the Burden of Proof

It is the well-established practice of the Equality Tribunal (Workplace Relations Commission) and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favorably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. 

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court.  The Labour Court stated as follows:

“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.”

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of age grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the ground of age to succeed. 

It was submitted by the Respondent that the Complainant has provided no evidence of less favourable treatment and the Complainant’s allegations are unfounded. 

The Respondent submitted that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. It is the Respondent’s position that the Complainant has singly failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance. Further case law which considers the burden of establishing a prima facie case of discrimination by the Complainant before the Respondent has a case to answer is the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, where it is stated that the language used within section 85A “indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts.”

Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40 wherein McKechnie J stated: - “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it.” 

The Supreme Court further stated that “does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Court. Rather, it determines what lawfully has been referred to it with a view to providing redress to the Appellant applicant for any discrimination as found. The Court cannot as such freelance its inquiry”.

It is on this basis the Respondent respectfully submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the Respondent proposed that the matter should be dismissed.  

Without prejudice to the foregoing if it is found that the Complainant has discharged the burden of proof the Respondent refuted any and all allegations of discrimination on the grounds of Age. 

The interview process is highly regulated and governed by the circular 43/00 and carried out by trained professionals applying a rigorous and consistent scoring method. These interviewers had no prior interactions with the interview candidates and were not known to each other. The mere fact that a younger candidate may rank higher at interview does not in and of itself point to discrimination on the grounds of age. 

The criteria used are designed to elicit the best candidate for the post being interviewed for and reliance on length of experience and professional qualifications alone would potentially lead to reverse age discrimination against younger candidates. It is very much the norm that performance at interview is taken into consideration. Additionally, whilst a candidate may be younger and may lack quantity of experience they may have experience that is more relevant to the organisation and the particular post being interviewed for. Crucially the interviews were consistent in terms of the interviewing panel, questions asked and duration of the interview,

The table below sets out the age profile of teaching staff employed by the ETB which demonstrates a significant proportion of their staff fall into the age 40 – 59 age brackets and does not therefore demonstrate discrimination in relation to the relevant age of the Complainant when interviewing for the referenced roles.

Case law

The Respondent refers to the case of Kathleen Moore Walsh v WIT EDA042 where the Court stated in finding for the Respondent that “in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board” .

The Respondent also referred to O’Halloran v Galway City Partnership EDA077 in which the Court pointed out that “the qualifications or criteria are a matter for the employer which is to be expected of candidates is a matter for the employer in every case. Provided chosen criteria are not indirectly discriminatory on any of the proscribed rounds. It is not for the Court to express a view as to their appropriateness.”

The burden of proof rests with the Complainant to show that she was discriminated against on the grounds of age. Should the Complainant shift this burden, it is the position of the Respondent that the Complainant was not discriminated against on the grounds of Age for all of the reasons outlined above and they requested the Adjudicator to so find.

The matter for adjudication is whether the Complainant was discriminated against on grounds of age arising from the decision of the Respondent not to select the Complainant for appointment for the post she applied. It was submitted that the complainant was discriminated against by the Respondent within the meaning of section 6 (1) of the Act, on the grounds of age contrary to the Employment Equality Acts.

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.

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.”

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”.

The Complainant Representative stated that proving the burden of proof was a difficult task as they had limited access to information to do so.  He advised there were certain elements in the Complainants experience that justified the challenge to the decision. He stated the Complainant had issues with the previous outcomes of interviews and the history of her interactions at interview. He questioned the variability in the scoring history and was not challenging the criteria but challenged the interpretation of their policies in place. He stated the scoring did not reflect the Complainants track record over 7 years with the Respondent. He stated the ETB elements were non specific and there was a variation of between 20 to 30% in her scoring over interviews. He questioned was there undue influence affecting the outcome. He advised the system lacked consistency and was an indication of bias and queried how the Complainant could perform better. He stated they were trying to work with the system but the scoring was influenced by the age of the candidates and suggested there was a connection. He advised the Comparator Teacher (Ms. B) was aged 24 and the Complainant was 51 and there was a 20 year gap in experience. He advised there was a significant gap in the award in the subjective areas. He outlined the Complainants achievements, past record of participation in school events and that there were no performance issues raised with her. He felt her contributions in the past had no bearing on the scores relative to the other candidate. He advised the Complainant had reached panels on multiple occasions but not achieved a full time post.  He queried how her overall evaluation should be lower than the person who got the job and others. He alleged there was institutional bias around the case.

With regard to the inference that there was institutional bias by the Respondent on an age basis there was no evidence supplied by the Complainant, whatsoever, that supported this inference and that element of the complaint is dismissed by the Adjudicator outright. It should also be noted this was part of the original complaint and a complaint that the Respondent was not on notice. The complaint will be considered on its individual merits only for the one interview process put forward as the complaint.

Two of the Interview Panel gave evidence, on affirmation, to the Hearing.

Mr James O’ Shaughnessy, Education Expert and Deputy Principal Coláiste Chiaráin Croom Mr. O Shaughnessy stated he was employed in teaching since 2007, was Science Teacher for 12 years and Deputy Head since 2018.and had conducted around 200 interviews under the circulars guiding the interview process. He advised they always follow the interview guidelines and structure. He advised they read the application forms and agree the interview process on the first day. He stated the interview panel and the Complainant were about the same age so he would not accept discrimination on the basis of her age. He stated they were given the freedom to evaluate the pool of candidates on the day. He advised he did not know the Complainant at the time of interview. He provided a breakdown of the staff ages and how this was reflective of a wide variety of ages and non discriminatory. He suggested that if they gave more points to higher experience than that would be reverse age discrimination. He advised he was not present at any of the other interviews where the Complainant was a candidate so could not objectively assess the scoring at those interviews. He advised they take everything into account and it’s the performance and attitude on the day of the candidates thats most important and not age. He advised they try to take information supplied from the CV into a competency based interview into what did the Interviewee actually do. He stated enthusiasm, ability to explain and bring the issues to real life were important in the interview. He advised the capacity to contribute was a key element and he was trying to get a feeling for that person and how they would bring it into day to day life in the classroom. He advised the ability to explain their real life examples was important. He refuted that age played any part in the selection decision in this or other decisions he was involved with. Mr O Shaughnessy was cross examined by Mr. Houlihan on the scoring. The Witness stated they start with the full score and then deduct points. He stated they place the candidates into categories, fair, good, very good and excellent which each attract a score. Each Interviewer scores the Candidates separately and then they come together as a Panel. He advised you have to score Excellent in all areas to get a score of 60. He stated over 50 was an excellent score. He advised they look a hard over each area by candidate and then rank the candidates. He stated they sometimes have to spend more time on some candidates with specialist experience and their ability to communicate. He stated that some candidates just out of college can score low due to their inability to communicate real life examples. He advised that a candidates ability and willingness to contribute to the whole school and Community life was a key issue for him  (and others) to consider in selecting a candidate. He also advised that the ability to be cross curricular was important.

 Mr Liam O’ Mahoney, Personnel Expert and Principal Mungret Community College also gave evidence to the Hearing. He advised he became a Teacher in 1990 and was Principal of the school for the last nine years. He stated there was a variety of ages employed by the Respondent, He advised he runs a greenfield school with 880 pupils and had lots of experience interviewing candidates and age never played a part in his decision making to shortlist a candidate or at interview. He advised there is always a variety of ages that apply and he is always looking to put the best candidate first. He advised that the Panels are created and any school could get the next panelled candidate and he always assessed candidates on their ability as he would expect the same of other Interviewers. He advised a good interview was completed by the Complainant but other candidates performed better on the day. He advised the named Comparator performed very well on the day and showed enthusiasm, desire, and passion. He advised age does not come into play and he would not entertain it. He advised there are guidelines for interviewers which they follow and all he wants to do is hire the best Teacher from the interviews. Mr. Houlihan cross examined the Witness about the average age of hires which he did replied he did not have the information. Mr. Houlihan questioned the scoring of the Complainant and the Witness stated the scoring on any particular day will be influenced by the quality of the candidates. The Witness stated he was hired at the age of 50 into his post. He advised selection is irrespective of age and gave an example of someone with two years experience but could be older due to late entry into the profession.

The Complainant did not provide any evidence directly to the Hearing.  

I have considered the written and oral evidence put forward by both parties. I note that the Complainant had substantial years teaching experience both abroad and in Ireland and had considerably more experience than the selected candidate. The Complainant was also significantly older than the person appointed to the role. I find that the Complainant has raised an inference of discriminatory treatment on the basis of 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. Arising from this there are two fundamental issues for consideration:

Was the system of evaluating the candidates for the post institutionally biased/structured to find in favour of someone with a lower age to the Complainant?

Did the Interviewers conduct the interviews fairly, systematically, honestly and with no inference of bias towards age?

On the first issue, the system is the same for all candidates and while a score of 10 maximum is given to experience this does not infer any benefit to either candidate and more so to the Complainant. The fact that the Respondent gives an 80% weighting to subjective considerations is not unusual in that all interviews are subjective.  The ranking of interviewees was in a consistent manner, done independently to the other interviewers and had a logical categorisation of candidates performance into four categories. It is a fact of life that certain people do better at interview than others and while all things are taken into consideration the key component for selection was how a candidate performs at interview compared to others at that time. On different days and with different candidates a candidate can either be in the higher scoring bracket or lower scoring depending on the quality of candidates who apply for a post. This, possibly with her own performance at interview, can explain the variation in the Complainants scores at the various interviews she attended.

On the second issue, I have carefully examined the testimony of two of the Interview Board members with regard to the selection of the successful appointee.  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 system and process and 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 the hearing was that the successful appointee performed substantially better in her answers to questions vis a vis those of the Complainant. While I note the Complainant places reliance on the system of analysis being heavily weighted towards a subjective analysis rather than a fact based analysis, this is itself is not discriminatory. I place considerable weight to the two Interview Panel members experience and values and nothing from their evidence gave me the impression that age was a factor in their decision making. Quite the contrary, they wanted the best candidate irrespective of age.

It is a long established principle that the WRC Adjudicators will not insert itself into an evaluation of potential candidates post the selection process (see case aw above) unless there is a manifest discriminatory ground. Nothing in my analysis of the system and method of selection used substantiates a manifestly discriminatory ground on age. The age range of both the Interviewers and the staff at the schools involved show a wide diversity of ages and the Board Members could not be categorised as leaning towards any particular age for appointment. I also found their answers to be open, honest, experienced and they truly evaluated the relative candidates on who they thought would be the best candidate for the post, irrespective of age.

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 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 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 in either the system used or any age bias by the Interviewers in relation to the post applied for.

I find that the Complainant was not discriminated against by age.

Discrimination