Complainant

Respondent

Parties

Caroline Naughton

Galway Roscommon Etb

Complainant

Respondent

Anonymised Parties

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Representatives

  Complainant

Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00054251-001

20/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00054251-002

20/12/2022

The complaint Ms Naughton, is employed as a tutor with the respondent, Galway Roscommon ETB.  The complainant believes that she is being discriminated against because she should be employed as a teacher rather than a tutor.

Evidence was given at the hearing under oath/affirmation by the complainant, Ms Naughton, and by Ms Caroline Reddington for the respondent.  Evidence was subject to cross examination. 

Submissions made in advance of the hearing together with evidence on the day were considered by me.

The complainant, Ms Naughton, entered the employment of Galway Roscommon ETB on 8 December 2014 covering a maternity leave position in VTOS Roscommon.  The post was mistakenly advertised as a Tutor, as only teachers are employable on the VTOS.  The error was not corrected by HR although the complainant was in fact paid as a teacher.  While working in VTOS, in January 2017 the complainant was approached to teach on the QQI L5 Healthcare Programme in a centre in Monksland, as a replacement for another teacher.  The position was not advertised and the complainant did not interview for it. In the weeks that followed the complainant was asked to cover some administration hours.  All hours were paid at the tutor rate.  Delivery of Level 5 is teacher work rather than tutor work. HR informed her that the tutor rate was the rate for ‘literacy’.  There was also a BTEI Conversion in place where staff could be converted from Tutor to Teacher.  The complainant was not offered this opportunity.

The complainant was approached in December 2019 to teach in the Ballinasloe College of Further Education. The position was to teach on the traineeship programme and all levels from QQI Level 4 to QQI Level 6.  Again, this work is appropriate to teacher grade but the complainant was paid at the tutor rate while other staff in the centre are employed as teachers and are teaching the same learners.

The complainant sought to process her grievance through her union.  She was informed by her union that agreement had been reached that she should apply for Teacher positions being advertised in the summer of 2021 and, following interview, would be given a contract of indefinite duration as a teacher. In August 2021 the complainant applied for two positions including one that was advertised through the medium of Irish.  On her application form she made reference to the HR person whom she had understood had made the agreement with the union.  She was subsequently contacted and asked if she wanted to do the interview through Irish and also informed that although there were two positions only one interview would be necessary.

Following the interview the complainant was placed on a panel and not given the CID as promised.  She was subsequently offered maternity cover at a different location which made no sense to her as she would have to vacate her existing position and go a distance for a temporary appointment.

The Complainant commenced employment with the Respondent on the 8th December 2014. The Complainant has received a number of contracts of employment throughout her time with the Respondent, both of a fixed term and permanent nature. 

The Complainant is permanently employed as a permanent Tutor contracted for 365 hours per annum, in line with the school year. Her permanent employment contract is dated September 2020.  

The Complainant additionally holds a fixed term contract for hours worked over and above those set out in her permanent contract of employment. 

The Respondent is a publicly funded body operating in the Education sector. The Respondent offers an extensive range of education and training services across many locations in Galway and Roscommon, including Primary Education, Post Primary Education, Further Education and Training, Outdoor Education, Music Education and Youth Services. Two of the funded programmes that the Respondent offers are “Traineeships” and “VTOS” programmes.

Traineeships were traditionally Fás run programmes, available to adult learners who are in receipt of social welfare payments.   After the amalgamation of programmes previously delivered by Fás in 2013, traineeships were seen as a good model in certain subject areas where awards tend to lead to employment e.g. Healthcare, Childcare etc.  In the past, these Fás traineeships were delivered by a grade referred to as “instructors” which is not a post that existed in the Further Education Sector. GRETB therefore looked at the nearest comparator and selected “Tutor” as the post that would be most appropriate to teach on these programmes. This remains the case to this day with the exception of a small number of red-circled arrangements. 

The Vocational Training and Opportunity Scheme or “VTOS” programmes offer second chance education to those over 21 and are unemployed for more than six months.  VTOS courses have always been delivered by teachers. This is why the Complainant was classed as a teacher in her earlier contracts, when she worked on VTOS programmes. 

 A third type of programme delivered by the Respondent is the “BTEI” or Back to Education Initiative. BTEI educators employed by the Respondent are a mix of teachers, tutors and adult educator grades.

Historically in VECs and now currently in ETBs there are many different contracts types for practitioners.  These include: teacher, tutor, resource person and adult educator.  Each type of contract has stipulations on where they can deliver in terms of programmes. There is a move nationally to regularise a lot of these contracts, with a particular focus on Tutor contracts.

Among the tutor grade, there are a mix of permanent and fixed term staff. The same can be said of teachers and adult educators. A person’s grade is determined by the type of programme they are employed on, rather than their status as a fixed term or permanent worker. 

The Complainant was initially employed in a part-time capacity, substituting for an IT Teacher in the Respondent’s VTOS Centre in Roscommon for 15.25 hours per week. As previously stated, the Respondent’s VTOS programmes are primarily delivered by teachers. The Complainant was initially offered the role as a Tutor however this was rectified and she received payment in line with that of a teacher for the duration of this contract. This contract ran from 8th December 2014- 24th May 2015.

This contract was extended in line with the duration of the absence of the teacher that the Complainant was backfilling at that time. The Complainant therefore received a number of subsequent contracts while she backfilled this role, some of which were also for the purpose of covering a second teacher’s maternity leave. These subsequent contracts are also of a fixed term nature and the job titled outlined within these subsequent fixed term contracts is that of teacher, covering the subjects of IT and payroll/bookkeeping. The classification of her role as “teacher” was appropriate and in line with the Respondent’s custom and practice in the context of VTOS programmes.

The above referenced contracts, came to their natural conclusion when the substantive postholders returned to work. The Complainant was offered further employment commencing on 30 September 2019 and finishing on 19th December 2019 within the Respondent organisation as a Tutor, delivering literacy tuition on a further education programme in the Adult Literacy Development Fund, or “ALDF” Roscommon. The “Nature of the Post” is outlined in the contract of employment in the following terms “The purpose of the contract is to provide tuition for the assigned number of hours. Hours may fluctuate depending on the programme requirement. This is a Fixed Term Contract of employment and therefore the provisions of the Unfair Dismissals Acts ,1977 to 2007 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term. These hours will form part of your Contract of Indefinite Duration, should you be entitled to one, except where objective grounds exist and you are solely covering for another staff member(s) absent on sick leave, or other approved leave of absence as a substitute tutor.”

The Complainant was aware when she accepted this contract that it would be paid at the lower, tutor rate as is evidenced by the email correspondence at the time. This initial tutor contract of employment commenced was for 2 hours 30 minutes per week.                The Complainant was offered a further fixed term contract in the Respondent’s Gort/ Loughrea location which commenced on 9th January 2020, terminating on 10th April 2020. The Complainant’s employment as a tutor in Loughrea was extended until the 29th May in line with course requirements. Again, this contract was for 2 hours 30 minutes per week.  On 24th August 2020, the Complainant received a contract for 22 hours of work per week, until 30 June 2021, as a literacy  in the Respondent’s Ballinasloe Traineeship course.   

On 1st September 2020 the Complainant was made permanent as a tutor in the Ballinasloe traineeship location, on a contract for 364 hours per annum.  In addition to the Complainant’s permanent contract for 364 hours per annum, in April 2021, she received a further contract for 16 hours per week bringing her to 25th June 2021. These additional hours were on a fixed term basis however this does not interfere with her ongoing permanent contract or her rights under same. 

As these additional hours continued to be available, the Complainant was then issued a 22 weekly hour contract in August 2021 until 24th September 2021 which was extended on 26th September 2021 until 7th July 2022. However, the fixed term nature of this contract applies only to those hours which are in excess of her permanent hours to which she continues to have a permanent entitlement.

This additional 22 hour contract was again extended to bring her to the 30th June 2023  and again between 28th August 2023- 28th June 2024.   These 22 weekly hours will form part of her CID from the commencement of courses in 2024 onwards.

The Complainant continues to work as a tutor, paid in line with her peers who are employed on traineeship programmes. As aforementioned, it is the Respondent’s practice that those who are employed on "traineeship” programmes are graded as tutors and not teachers whether they work on a fixed term or permanent basis due to the nature of the work and course requirements. 

The Complainant seeks to compare herself to those who are employed as “Teachers” on the Respondent’s BTEI/ VTOS programmes. She has referenced two specific examples in her complaint form; The first is a teacher who is employed at the same centre as the Complainant as part of the traineeship programme. This is a highly unusual and red circled arrangement. The teacher in question has been a permanently employed teacher for many years with the Respondent organisation. She was originally employed as a teacher on a programme that is no longer in operation. She was therefore redeployed and, as part of this redeployment, she retained her teacher terms and conditions notwithstanding the fact that she is currently assigned to a Traineeship programme. She is therefore not an appropriate comparator for the Complainant to refer to. 

The Complainant herself has a permanent contract, as well as a fixed term contract as a tutor, both paid on the same scale.  The Complainant seeks to compare her pay as a tutor to that of a teacher as part of her claim for less favourable treatment under the Act. The Respondent respectfully submits that such a view is misconceived as the pay differential is not determined by fixed term or permanent status but rather by programme type, and is dependent on the programme a person is employed on. 

The Complainant herself was paid as a teacher when she worked as part of the VTOS programme, notwithstanding that her employment was fixed term/ specified purpose in nature at that juncture. This again is evidence that the Respondent bases its grading of staff on programme type, and not on their fixed term or permanent status.  It is worth noting that there are three other tutors employed in the same centre as the Complainant. 

The Complainant was invited to apply for a role as a teacher within the Respondent organisation. The Complainant did so in the summer of 2021 and was successful in being placed on a recruitment panel for teachers within the organisation.  The Complainant was offered the first role which came up which was maternity leave cover for a teaching position in Castlerea Prison. The Complainant declined this offer.

The Complainant has clearly been given the opportunity to progress to a teacher role if this is what she wishes to do, however she chose to remain in her current tutor position. In this regard the Respondent notes that a competition was run or teachers in VTOS Roscommon, an area where the Complainant had previously worked ahead of the 2023 – 2024 academic year. The Complainant opted not to apply for any of these posts.

With respect to Section 5(2) of the Protection of Employees (Fixed-Term Work) Act, 2003  the complainant does not perform work that is “interchangeable” with its teachers or work that is so similar that the differences are “insignificant”. Teachers, as aforementioned, require a higher level of education and registration as previously outlined. They work to the post-primary academic year, on the same terms and conditions as teaching staff who are employed in secondary schools by the Respondent. For this reason, teachers are only “interchangeable” with other teachers, as tutors cannot be redeployed to secondary school in the same manner, nor are the same minimum education requirements applied to the tutor role.

As the complainant is employed on “Traineeship”, her relevant comparators are those who are also employed on Traineeship programmes. The Respondent’s practice is to recruit tutors to this grade as previously outlined, and this is the case for both fixed term and permanent staff. The complainant has alluded to one example of a teacher being employed on a Traineeship in her centre. This is due to a person-to-holder red circled arrangement and is therefore not a suitable comparator to the complainant. All other teacher staff referenced by the Claimant are employed on other programmes. 

 The complainant has further sought to compare herself to staff employed on the Respondent’s “BTEI” programme. Specifically, she is seeking to compare herself to teachers employed on same. The Respondent rejects this comparison. Some individuals who participated in the Respondent’s BTEI “conversion” programme received teacher contracts. The complainant was not eligible for same as she was not employed on this programme at the relevant time. BTEI programmes are delivered by adult educators and tutors as well as those teachers who were encompassed by the conversion. It is opportunistic for her to attempt to align herself only to those BTEI staff who received teacher contracts through a process agreed with Unions which she was not eligible for, and not those who are on the same type of contract as her (tutors), or adult educators.

In relation to  Sections 6 and 7 of the Act any less favourable treatment can be objectively justified on the basis that any such differential arises only as a result of;  Historic red-circled arrangements that are subject to redeployment; A conversion process that applied to staff employed on the BTEI programme only, whose employment pre-dates July 2016 and or; Cohesion among staff employed on traineeships. Any such differential is entirely unrelated to the fact that the complainant has a fixed term contract. It is noted that her substantive contract is a permanent one, which has been in place since 2020 and the additional hours encompassed by her newer fixed term contracts will also form part of her CID from the start of the 2024-2025 courses. She has received no differential treatment on either contract. Similarly, when she worked on the VTOS programme, she was paid as a teacher notwithstanding her fixed term status.

While the Respondent notes that the complainant appears aggrieved by her status as a “Tutor”, the complainant has also failed to demonstrate a link between this and her fixed term status. General grievances cannot be comprehended within the scope of the Act in the absence of any clear causal link between the employees grievance and their status as a fixed term worker.       Additionally, the complainant has not made out any claim under the Employment Equality Acts.

This case has been taken under the Employment Equality Act, 1998 and the Protection of Employees (Fixed-Term Work) Act, 2003.  The complainant is alleging discrimination under both Acts. My decision is limited to these issues and not to other issues raised during the hearing which may be appropriate to an industrial relations forum.

In relation to the Employment Equality Act a complainant must first establish that he or she is being discriminated against under one of the 9 grounds stipulated in the Act, namely; gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.  In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant and that such treatment related to the complainant being covered by one of the 9 grounds. Section 6 of the Employment Equality Acts requires that the comparator must be in a “comparable situation” and therefore a level of similarity is required in order for the circumstances of the two persons to be comparable. The complainant offered no evidence as to how she was discriminated against under any of these grounds in comparison to any other employee of the respondent. The fact that she believes the policies of the respondent to be unfair does not of itself mean that they are discriminatory for the purposes of the Act. I accept the evidence of the respondent that the respondent’s policies apply equally to all of its employees (except in a number of red-circled arrangements which were objectively justified) and therefore I conclude that the complainant was not discriminated against under the Employment Equality Act.

In relation to the complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 Section 6 of the Act states;

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

The essence of the complainant’s argument is that she should be a teacher rather than a tutor.  The policies of the respondent in that regard, as is clear from the evidence given at the hearing, relate to the nature of the course on which someone is employed, rather than the nature of their contract i.e. Fixed term v Contract of indefinite duration. The complainant referenced a purported agreement between her union representative and the respondent that the respondent would effectively rubber stamp her appointment as a teacher following interview and that this did not happen.  Whether or not such a commitment was made, this would not constitute a cause of action under the Protection of Employees (Fixed-Term Work) Act, 2003 but may be more appropriate to be dealt with as an industrial relations grievance.  I find that the assignation of the complainant as a tutor rather than a teacher is not related to her fixed term contract and therefore the complaint is not well founded.

CA-00054251-001 The complainant was not discriminated against.

CA-00054251-00   The complaint is not well founded.

Discrimination, fixed term, objective justification, need for a comparator