Complainant

Respondent

Anonymised Parties

A Teacher

A National School

Representatives

Cleary & Co. Solicitors

 Patricia McCallum BL

Lorcan Maule Mason Hayes & Curran LLP    Cathy McGrady BL                                             

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052782-001

08/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00052782-002

08/09/2022

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

CA-00052782-004

08/09/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00052782-005

08/09/2022

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

CA-00052782-006

08/09/2022

The Complainant was employed as a substitute teacher with the respondent to cover leave for other staff members over a series of fixed terms from April 2017 to the 17th June 2022.  The Complainant submits that she was discriminated against by the Respondent when she competed for a post in the school in August 2022 on the grounds of religion, age and gender.  The respondent denied all claims.

The Complainant’s counsel Ms. McCallum confirmed to the WRC on the 9th June 2025, that the remaining complaints under the Terms of Employment (Information) Act, 1994, the Minimum Notice and Terms of Employment Act, 1973 and the Protection of Employees (Fixed-Term Work) Act, 2003 were no longer being pursued.

The following submission was furnished to the WRC on the 28th June 2023.

Introduction

The Complainant has set out in detail the factual scenario concerning her employment at the Respondent school and her interactions with the principal of the school (Mr. A) and the Defendant in her Complaint Form. The Complainant will also give evidence in respect of such interactions.

The Complainant has also considered the factual matters as set out in Respondent’s submissions and makes the following comments;

Background

The Complainant was informed by the Principal on 10th June 2022 that Mr. B had been allocated to 5th class for the coming year. This post was one of two identical posts which were available at that time, only one of which was summarily allocated by the Principal. The Complainant will call corroborative evidence to prove that the appointment of Mr. B was made on this date. Of note, the Respondent refers in its submissions to Ms. C being a witness to the conversation between the Principal and the Complainant on 10th June 2022, however, Ms. C is not listed as a witness. In the event that the Respondent does not call Ms. C as a witness, the Complainant will make an application for a witness subpoena for Ms. C.

The Complainant also requires the full unredacted contemporaneous notes in respect of the interview and scoring sheets in respect of both Mr. B and Ms. A, none of which have been provided by the Respondent.  If necessary, an application for production of these documents will be made.

By virtue of Circular 0044/2019 while the Respondent was entitled to award both available posts without advertising or interviewing for the posts, it chose to simply award Mr. B the 5th class post and then advertise and interview for the other post. The Respondent has not explained why it chose to deal with both candidates differently.

Notably, the Respondent has failed to append the relevant Circulars 0044/2019. (See Appendix 1) 

Age Ground

The Respondent refers to the IPPN (Irish Primary Principals’Network) assessment criteria but does not exhibit same. The Complainant is totally unaware of these criteria having never been provided with same either prior to the interview or thereafter. In particular, the Complainant was not provided with any criteria, IPPN criteria or otherwise, at any time prior to or during her career at the Respondent school in circumstances where she did not interview for her first role.

The Respondent baldly asserts that Ms. A simply “performed better” at interview and gives no objective reasoning for her appointment over and above the Complainant and similarly baldly states that the Respondent has a record of “appointing candidates of all ages”, again without any supporting evidence of same.

The Respondent also avoids actually stating the age of Ms. A.

The Complainant is not referring to teachers appointed though the Redeployment Panel and will give evidence in respect of same. 

Religion

The Complainant will give clear evidence of her husband’s Protestant name of “W.” being commented upon in the workplace and derogatory comments being made in respect of same. The principal was present when such comments were made by Mr. E and Mr. C. The Respondent is put on full proof of its denials in that regard.

The Complainant is registered as “C...” with the Teaching Council and has only used the name “C...” since she commenced teaching at the Respondent school in 2020 and there ought to have been no confusion whatsoever in respect of her surname.

Gender

Mr. B and the Complainant are not of the same gender and were very much treated differently with no explanation for same.

The Complainant was unaware until receipt of the Respondent’s submissions in June 2023 that the Respondent was denying that the post of 5th class was awarded to Mr. B on 10th June 2022. As stated, the Complainant emailed the INTO, on 16th August 2022 giving a contemporaneous note of what occurred on 10th June 2022. Please see Appendix 2.

The Complainant is unsure why the Respondent asserts in its submissions that she is attempting to impugn the Principal’s good name and that her attempts to do so are “noteworthy”. The Complainant is, as she is entitled to do so, setting out the factual situation surrounding her employment with the Respondent. The Complainant is also entitled to comment upon why she feels she was treated differently, ask questions in that regard and comment upon the impact such treatment has had on her and such questions and comments ought not to attract such aggressive responses as require the use of exclamation marks, or to be characterised as “bizarre”.

It is noted that the factual position as between the Complainant on the one hand and the Principal Mr. A, Mr. D, Mr. B and Ms. D on the other hand are diametrically opposite and in those circumstances, all of the Respondent’s witnesses ought to be available to give evidence and the Complainant will strongly oppose any hearsay evidence being led by the Respondent.

The Law

The Complainant need not set out the relevant statutory provisions which are already set out in the Respondent’s submissions.

The Complainant does however note the following;

The Complainant agrees that pursuant to Section 6 that discrimination shall be taken to have occurred where a person is treated less favourably as between any two persons on grounds including gender, religion and age.

The Complainant agrees that the burden of proof is set out in Section 85A and the Complainant also relies upon the case of Monaghan VEC v Carroll EDA0415 at Appendix 3 wherein it was stated;

“The Court is of the view that if as in King, certain facts are found by this Court and where those facts point to the possibility of discrimination on age grounds, the Court will look to the employer for an explanation. If no explanation is then put forward or if the Court considers the explanation to be inadequate, it will be legitimate for the Court to infer that the discrimination took place.

This test is congruent with the principles laid down in the Mitchellcase and the Court will proceed to use those principles when assessing whether or not the complainant has proved his case.”

The Complainant also refers to the case of Moate Community School Moriarty EDA 0718/2007 at Appendix 4 wherein the Labour Court commented;

“Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case.”

The Complainant submits that the surrounding facts and circumstances of the within case, once evidence has been heard, will prove a prima facie case of discrimination.

In particular, the Complainant points out a complete lack of objective evidence for the Respondent’s actions in appointing Mr. B and Ms. A to the relevant posts. In particular, the Respondent has produced a simple and terse marking/scoring sheet in respect of the interview process, completely lacking in objective criteria. In that regard the Complainant refers to the case of Department of Health v Dillan DEC–EE–2003–035 (Appendix 5) wherein it was stated;

“‘This Court has consistently stressed that interview boards both internal and external should be trained and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes.”

Further, the Complainant also relies upon the case of Johnson v Louth VEC as referred to in the Respondent’s submission however in particular refers to the factors which the Labour Court expressed approval for in a school interview situation as follows;

a.     The interview and selection criteria were fully in compliance with the relevant Department of Education and Science circular;

b.     The procedures were clear and transparent;

c.      The members of the interview board were independent of the employer, had extensive experience, and were trained in the requirements of antidiscrimination law;

d.     A pre-interview meeting was held at which the panel drew up questions relating to key areas and;

e.     Marks were allocated for critical attributes required for the duties of the position based on objective pre-determined criteria.

The Complainant submits that the above factors were not in place during her interview and no evidence has been thus far been proffered to evidence same.

Further, the Complainant in this case, like the Complainant in Carroll, has vastly more experience and superior qualifications to either Ms. A or Mr. B. The Complainant also points out the lack of objective evidence produced by the Respondent to justify the appointment of Mr. B and Ms. A to the relevant posts.

The most cogent evidence is the fact that Mr. B was treated entirely differently to the Complainant and the Complainant was vastly more qualified and experienced than Ms. A.

Summary of Pertinent Evidence of the Complainant:

The Complainant set out the background to her career history as a teacher and outlined the classes she had been assigned to in the school. She asserted she was never given a contract or a document setting out her terms and conditions of employment.  The Complainant said that in 2022 she learned in direct exchanges with her colleagues that there were opportunities for further work in the school coming up owing to indications that some teachers would be availing of job sharing and parental leave.

She gave an account of her meeting with the Principal Mr. A about future employment opportunities on the 10th June 2022. The Complainant said Ms. C also attended the meeting – the Complainant did not know why Ms. C was there and said she seemed a bit confused. The Principal indicated that 2 vacancies would be arising at 5th class and 4th class and that the latter vacancy would not be filled until August or September. When she questioned why – i.e. the delay in filling the second post - the principal replied that “you are on a supplementary and may possibly get a job elsewhere”. The complainant replied this was not definite and not a reason not to apply.  Mr.A indicated that the position of the teachers availing of these working arrangements may change and that they may not avail of parental leave. He said there was a job in K and would contact the school principal about it. The Complainant referenced 3 temporary teachers – herself, Mr. B and Ms. A. The Complainant said she got upset and could not understand what happened. She said that later that day Mr. B confirmed he got the 5th class post in the car as they drove home.

In a conversation with the Principal later that day the Complainant referred to her enthusiasm for the job and her experience, the Principal more or less reiterated what he had said previously – the vacancy in K, the supplementary panel and the question mark over teachers taking parental leave. The Complainant said she did not recall the Principal referring to open recruitment. She asked the question was it between her and Ms. A.

The Complainant said that when she raised her concerns - in a subsequent conversation with the Chair of the Board of Management Mr. D, he was very pleasant and said he had taken his eye off the ball and had left matters up to the Principal Mr. A.

When she spoke with the Principal on the 14th June, the complainant got very upset and he told her that she may take it that Friday would be her last day. She submitted the Principal was unsure and jittery. The Complainant said  she was pursuing the matter of a CID – she would have acquired 2 years service on the 2nd November and made contact with her union the INTO. She indicated that she would like an opportunity to continue with the school to enable her to acquire 2 years service.

The Complainant said she had another discussion with the Chair of the Board of Management – (Mr. D) - she said he was very annoyed and in an aggressive voice accused her of talking to other staff and the union. She replied the staff were her friends and she had a right to speak to her union. The Complainant said that Mr. D told her she had jumped the gun and that she couldn’t force the Principal’s hand and she should let Mr. A make the decision and see what emerges for her.

She was crying and asserted that Mr. D reverted to a priestly tone – suggesting we will see what happens and said “God Bless you My Child”. When her colleagues enquired what was going to happen, she replied that Mr. D told her “I am not allowed to talk to staff”.

The Complainant said that Mr. B was around the same age as her and Ms. A may be in her late 20’s but she was not sure.

The Complainant said that she used her name Ms.X  when she registered with the Teaching Council – she said the Vice Principal Mr. E always called her Mrs. W… saying the kids were confused. The Complainant referenced a fund raising event in the COI (Church of Ireland) school in T and said that Mr. C and Mr. E joked and said she should be making tray bakes for the COI school. The Complainant said the Principal Mr. A laughed along with them.

She said the implication was that she had a Protestant background. This incident happened at least twice. The Complainant referred to questions from her colleagues about her own children and when they would be making their First Communion. The Complainant had been preparing her own pupils for Communion.

The Complainant said when the posts were advertised, no criteria was furnished. No guidelines were issued even though the respondent’s advertisement  referred to IPPN (Irish Primary Principal Network). The Complainant had never previously been interviewed by the school – prior to the 27th August 2022. The interview Board included the Principal, Mr. D and Ms. D – the Complainant was unsure in what capacity Ms. D was on the Board. The Complainant said Ms. D exhibited hostile behaviour towards her – she looked down at her – the Complainant – and had her arms folded. There was contact with Mr. D on the 29th August when she asked for her score sheets and interview notes – he responded that no notes were taken on the day and wished her well. The Complainant did not recall notes being taken. The Complainant corresponded with the INTO – in August 2022 – she learned that the respondent was trying to say that Mr. B was interviewed for the position. She said the Principal and Mr. B told her he had been appointed.

The Complainant said that as far as she was aware neither Mr. B nor Ms. A had first class degrees. The Complainant said she had been advised that the posts would be offered to people who wanted to build up their service with a view to securing a CID.

The Complainant in responding to her counsel confirmed that this was the first time she was aware that the employer was trying to say that Mr. B was interviewed for the position – she asserted that the Principal and Mr. B told her it had been confirmed that he had been appointed.

The Complainant referenced the supplementary panel and the appointment of Ms. B from the panel in a permanent capacity.

Her understanding was that vacancies of less than 24 weeks were offered to people who were trying to build up service to acquire a CID in the school.

The Complainant acknowledged that she participated in the WhatsApp group in the school – it reflected the culture of the school – she said some of the jokes were unacceptable and not appropriate to a school environment.

The Complainant accepted she must have sent WhatsApp no. 9 and said it was an error of judgement to have sent it. She referenced a cynical culture and joking around – she said her experience was that you were an outsider if you weren’t joking around. All staff were in the WhatsApp group. She said the irreverent attitude in some of the messages were led by Mr. A and Mr. E. All staff were in the group.

The Complainant said if she had gotten the job, she would have been entitled to a CID by the 2nd Nov. 2022.

The Complainant set out a chronology of her assignments to various classes after she took up vacancies for job/sharing and parental leave. She said she was on the supplementary panel in 2022 and the Principal was aware that she was on it. It was put to the Complainant that the Principal would say she was lobbying for a job – the Complainant replied she knew her job was coming to an end and she was looking for equal opportunities to be eligible. She had obtained advice from her union. The Principal accused her of talking to the union – she believed it was her right to do so. The Complainant said the IPPN guidelines were given to her after the interview. The Principal advised the Complainant that her last day at work was Fri June 17th.

The Complainant confirmed that she was not given the interview criteria prior to the interview process and confirmed she had requested the interview notes via email. She acknowledged she could not say for definite that Mr. B was not interviewed. It was her understanding that he was appointed to the post because the duration of the assignment was less than 24 weeks. The Complainant referenced her previous appointments in school L and school F where she did not interview for the post. The Complainant accepted she may have mentioned her family in her exchanges with the school because she was concerned about the prospect of unemployment. The Complainant said she had a professional relationship with the Principal. She confirmed she did not raise a direct issue with him about the tray bakes or the use of her married name at the time.

The Complainant presented a detailed account of her qualifications and teaching experience. She confirmed that her qualifications and teaching experience were set out chronologically in her application form – where candidates are required to list qualifications.

Cross Examination

Under cross examination, the Complainant confirmed that she was very disappointed when she did not get the job – she had an expectation of a CID and was working towards it. She was only 2 months short of qualifying for it.  The Complainant confirmed her allegations of discrimination were   based on the grounds of religion, gender and age. The Complainant accepted that Mr. B was in the same age bracket as her and that Ms. A was the same gender. The Complainant referred to Mr. E’s persistent referral to her as Mrs. W… and that she should be in T baking for cake sales. The Complainant said no one else was referred to like that. The Complainant confirmed she was making a complaint on the grounds of religion. It was put to the Complainant that Mr. A was very supportive of her in her quest for a CID. It was also put to the Complainant that while her colleagues may have spoken to her about their plans for parental leave and or job sharing, they may not have told the Principal about their plans. It was asserted by the respondent’s Counsel that Mr. A only became aware of these plans much later in the Summer.

The Complainant did not accept that Mr. B was appointed following interview and the Complainant asserted that he and Mr. C confirmed that he – Mr. B - had got the 5th class post. The Complainant said that at the meeting on the 10th June 2022, Mr. D did not take notes – he had a sheet of paper with boxes on it – the Complainant said he changed his mind 3 times – he referred to the supplementary panel, the K post and a change for one teacher. It was put to the Complainant that Mr. A will confirm he did not appoint Mr. B.  It was put to the Complainant that Mr. A was clarifying that 2 different teachers would be returning as opposed to the jobs not being for the Complainant. The Complainant understood that when the principal said that you can take your last day will be Fri 17th June – that he had his mind made up. It was put to the Complainant that when Mr. A referred to the K post – he was trying to be helpful. She replied that she told him she was not interested. The Complainant said she engaged with her colleagues – other people had approached her. She referred to an atmosphere of hierarchy within the school.

The Complainant said that at the meeting on the 10th June Mr. A indicated that there were 3 people on the same position and that he referenced giving a job to Mr. B – 5th class and he indicated that the Complainant and Ms. A were pretty much in the same position and that the 4th class post would not be filled until July or August. It was put to the Complainant that Mr. A will say that he did not make appointments prior to the interview process and he did not speak to Mr. B. The Complainant responded that Mr. A told her he appointed Mr. B and she rejected as untrue the Principal’s assertion that no appointment had been made. When it was put to the Complainant that Mr. B would say he wasn’t appointed, the Complainant replied that is not what he told me. It was put to the Complainant that Mr. B will deny meeting her on the beach and discussing the posts. The Complainant reaffirmed that Mr. A told her on the 10th.June that Mr. B was getting the job. The Complainant said that she did not accept that Mr. B was interviewed. It was put to the Complainant that it was very clear that the Principal did not know what was happening and he denied appointing Mr. B to 5th class. It was put to the Complainant that the Principal would say that no appointment had been made – the Complainant responded he told me himself that he appointed Mr. B.  The Complainant said she did not accept that Mr. B had been interviewed.

The Complainant accepted that at the meeting on the 10th June, she asked the principal was it between her – the Complainant – and Ms. A. The Complainant said that she never said that she should get it – she accepted she may have referred to her young family. The Complainant was referred to her letter to the Principal dated 21st July 2022 wherein she advised “The INTO have confirmed for me that my existing service within K NS would stand towards me getting a CID after one more year of service in the  school…as you will undoubtedly understand, this is of vital importance to me, to my professional development and career in general and to my young family”.

It was put to the Complainant that Mr. D would deny her allegations about their conversation – the Complainant considered it appropriate to call him as he was Head of the Board of Management.

The Complainant asserted that Mr. E always called her Mrs. W.... The Complainant said that C... was the surname she used for the Teaching Council. She asserted that her married name was used because it was a Protestant name. The Complainant reiterated that she was the only teacher referred to as Mrs. W... because it was a Protestant name. The Complainant acknowledged she used Mrs. W... for tax purposes. It was put to the Complainant that people called her Ms. W... because she called herself Mrs. W... and that her payslip was in the name of Mrs. W.... The Complainant asserted that the motivation for addressing her as Ms. W... was an effort to make her different. She felt different and excluded  -  the Complainant said Mr.B was a male teacher – there was no reference to his wife whereas the Complainant was teaching in the school.

It was put to the Complainant that the respondent’s witnesses would deny the references to tray bakes – the Complainant said she was told she was better suited to school T and her colleagues Mr. C & Mr. E had their backs to the sink laughing.

The Complainant was asked if she was alleging that the reference to tray bakes impacted upon her getting the job - the Complainant responded that it was a series of events over a long period of time – the tray bake reference made her feel different and she did not belief that the competition was run correctly in terms of performance and qualifications.

The Complainant said her No.9 WhatsApp message was a once off and was an error of judgement. Other staff used the platform for jokes. It was put to the Complainant that the engagement was not once off and that the Complainant replied to other messages.

 The Complainant said she did not engage in jokes such as the reference to the airline flight. The Complainant referred to a culture of impunity.

It was put to the Complainant that these were normal interactions she did not take issue with at the time. She was asked if the atmosphere was so awful why was she so desperate to stay – the Complainant replied that her interactions with colleagues was mainly positive – her complaint was with management and not her colleagues. The Complainant said that she had been told not to talk to staff or the union. It was put to the Complainant that there was no indication from her that she thought the atmosphere in the school was toxic. The Complainant replied that she had discussed it with the SNA’s, with Mr. C and with Mr. B when they were car sharing. The respondent’s representative said I am asking you about culture – the Complainant referenced links she had tried to share in the school and often there was no response back. The Complainant acknowledged that the Complainant’s letter to the Principal in July 2022 was positive about her experience in the school – the Complainant reiterated that her main complaint was with the management of the school. It was put to the Complainant that she was alleging that her allegations about tray bakes and negative/toxic atmosphere impacted on her interview. The Complainant said her complaint was against Mr. A and Mr. E – the respondent put it to her that the Principal had scored her the highest – ahead of Mr. B and on the same level as Ms. A and that consequently there was no discrimination.

The Complainant was unclear as to whether or not Ms. D - external interview panel member – had asked her at the interview if she was happy. The Complainant described Ms. D as disinterested and disdainful. The Complainant indicated that she saw some interaction online between Ms. D and Mr. E and it was put to the Complainant that this did not constitute evidence of discrimination on age or gender and the candidate who had a spouse with the COI faith had been successful.

On redirect the Complainant confirmed her follow up with the school after the results were issued – she said she could not say for definite that Mr. B had not been interviewed. She said that she referenced her family in her exchanges with Mr. A because she was concerned about the prospect of unemployment.

Summary of Pertinent Matters raised in Complainant’s concluding submission and not addressed in the pre-hearing submission to the WRC:

The Complainant

The complainant’s representative referenced a number of the complainant’s first class marks in her Higher Diploma in Arts – obtained in 2016 and disputed the respondent’s characterisation of her service by the respondent as “bitty”. The Complainant’s counsel asserted that while she was limited to short periods of employment from 2016-2018 over the 4 year period from Sept. 2018 – 2022 she had long periods of employment covering maternity leave and full years, “including 2 years at the respondent school from 2020 to 2022”.

It was submitted that it was agreed by the parties that the Complainant did not do an interview for previous appointments in the school.

It was submitted that during 2021-2022 the Complainant was subject to derogatory commentary unlike Mr. B who was not the subject of derogatory comments regarding his wife’s surname, traybakes or teaching at a COI school.

Complainant’s counsel referred to inappropriate messages in the WhatsApp Group and acknowledged that while the complainant participated in some of the texts this was the culture she was met with when she joined the school in 2020.

Meeting of the 10th June between complainant and Mr. A regarding work prospects for the following school year and follow up interactions:

Complainant’s counsel focused on Mr. A’s response at the meeting on the 10th June where it was submitted that Mr. A was evasive – in that he referred to the supplemental panel, another school at K and the second placed candidate Ms. A – it was submitted that Mr. B was not mentioned as he had been given the position and “it was clear that Mr. A did not want to give the other position to the complainant”. It was contended that the evidence of Mr. B was of utmost importance in this regard.

The Complainant’s representative set out an account of the ensuing interactions between the complainant and the Principal as well as the Chairperson of the Board of Management.

It was submitted that unbeknown to the complainant a collective decision was taken by the interview panel prior to her interview to score the 2 objective criteria boxes – “Suitability of Qualification and Teaching Experience “  and “Professional Competence and Satisfactory References “the same for all internal candidates and that no documentation was provided to either explain or justify this position.

It was advanced that no evidence of how the respondent met their obligations under Circular 0044/2019 was presented and that no evidence of the qualifications or teaching experience was produced. It was submitted that no evidence of dates of applications for job/share /parental leave was submitted. It was submitted that Mr. B agreed that he qualified 2-3 years later than the complainant and obtained a 2:2 in his degree and masters.

It was submitted that at the time the Complainant gave evidence, she was unaware that Mr. A had an “unsolicited (and unsupervised) meeting with Mr. B and Ms. A where they were informed they would have to interview for the jobs”.

The Complainant’s representative summarised the evidence of Mr. B in relation to his meeting with Mr. A prior to the 10th June and asserted that he had been assured of further work and stated under cross examination that interviews were not mentioned in that context. It was submitted that this contradicts the employer’s assertion that both candidates were told “precisely the same” by Mr. A and that this corroborated the “Complainant’s evidence that Mr. A had made up his mind to give Mr. B a position”. It was emphasised that Mr. A did not refer to the meeting and that it was Mr. B who volunteered that this meeting had taken place when he gave evidence.

It was submitted that Mr. B “agreed with every single aspect of the evidence given by the complainant when she reported back on her meeting with the Principal”.

It was submitted that the chronology of events supported the Complainant’s contention that it was only after the complainant raised issues with the Chairperson of the BOM that Mr. A suddenly announced he couldn’t promise anything to anybody.

Evidence of Mr. C

It was further submitted that on the basis of the timelines submitted in evidence by Mr. C that Mr. C had already made up his mind to apply for parental leave and had discussed it with the Principal who “knew before the 10th June that he had at least 2 positions available”.

It was submitted that Mr. C and Mr. E were the persons who made the traybake comment while Mr. A was present. It was submitted that the comment and the reference to the other school could only be a reference to the complainant’s Protestant married name and were inappropriate.

Evidence of Mr. A

It was submitted that the Principal’s evidence about his later call with the complainant on the 10thJune supported the complainant’s assertion that Mr. B had been taken out of the equation by the Principal when no reference to Mr. B was made in the Principal’s note of the meeting. It was disputed that the Principal was unsure of the positions available for September and it was submitted that as the Chairperson of the Board was largely unaware of the appointments and jobs available for 2022/2023 the Principal was the only person to make “such a decision”.

Evidence of Mr. D

It was submitted that the lack of clarity in relation to Mr. D’s (Chairperson, Board of Management) evidence and recollection of events was noteworthy. Counsel detailed Mr. D’s replies to the matters raised under cross examination. It was contended that Mr. D had taken his eye off the ball and that the decisions regarding appointments were being made by the Principal.

It was contended that Mr. D gave no plausible explanation for awarding equal marks to all 3 internal candidates in the 2 sets of objective criteria previously referenced and a detailed record of the exchanges on the matter between the witness and complainant’s counsel - that took place under cross examination were presented.

Evidence of Ms. D

It was contended that Ms. D’s (Independent Assessor) evidence on this matter was implausible and a record of the exchanges between Ms. D and the complainant’s Counsel was presented.

Conclusion

It was submitted that there was an inappropriate culture in the school and this was reflected in the manner in which the complainant was addressed by her Protestant name.

it was submitted that the Principal had made the decision to give Mr. B the position of x class teacher for 2022-2023 based on Mr. B’s conversation with the Principal and Mr. B’s account of his conversation in the car following the 10th June meeting.

It was asserted that it was agreed that the complainant was qualified longer than Mr. B and that it follows she is more experienced. It was advanced that the treatment of the complainant- supervised meeting, changing explanations for not appointing her by designation and not mentioning interviews – was such that a decision had been made not to appoint her.

It was submitted that following the complainant making a fuss and raising her concerns with Mr. D (Chairperson BOM) that the Principal sought to backtrack by pulling Mr. B and Ms. A into an unsolicited meeting where interviews were referred to.

It was submitted that it was clear from Mr. D’s evidence that for personal reasons, Mr. D had ceded control of the appointments to Mr. A.

It was argued that a decision was made at interview to wipe out the 2 objective categories (previously referenced) by scoring all internal candidates the same –“negating any chance of the complainant gaining more points than the less qualified or less experienced candidate”. A record of the questions and answers that took place between the Independent Assessor and the complainant’s counsel under cross examination about the application of a global figure to 2 criteria was presented.  It was submitted that neither Mr. D nor Ms. D gave a plausible explanation for this decision. It was submitted that no explanation was offered as to how Ms. A and Mr. B scored the same as the Complainant in 2 categories.

It was submitted that on balance taking into account the evidence of Mr. D and Ms. D that the decisions were made by Mr. A and that he had already decided as far back as June that Mr. B was getting the first job, this decision was followed through at interview.

It was submitted that the cumulative effect of all of the foregoing raised a prima facie case of discrimination on the grounds of either age, gender or religion.

Summary of Respondent’s Case:

The following submission was furnished to the WRC on the 15.06.2023

The Complainant has brought a number of claims to the WRC under the Terms of Employment (Information) Act 1994, the Employment Equality Acts 1998, the Minimum Notice and Terms of Employment Act 1973 and the Protection of Employees (Fixed-Term Work) Act 2003. The Complainant has withdrawn a claim under the Unfair Dismissals Acts.

Having withdrawn her unfair dismissal claim and from the narrative set out on her complaint form, it appears that the Complainant’s primary claims are to have been discriminated against on the grounds of gender, religion and age, in getting a job, dismissing her for discriminatory reasons, dismissing her for opposing discrimination and victimisation. The claims are denied.

The Complainant’s version of events as set out in her WRC complaint form is very much in dispute. The Burden of Proof falls upon the Complainant. The Respondent has not had sight of a submission on behalf of the Complainant and reserves its position in that regard.

 BACKGROUND

1. The Complainant was employed by the Respondent as a substitute teacher from November 2020 to June 2021 and for the 2021/2022 academic year on fixed term / specified purpose contracts, to cover parental leave of other staff members

2. On 19 April 2021, with the assistance of the Principal Mr. A, the Complainant applied to the Department of Education and Science, for a contract of indefinite duration. Appendix 1 By letter of 11 May 2021, the Principal was notified that the application was unsuccessful, as the Complainant did not have continuous employment with the same employer in excess of two years. Appendix 2

3. During the 2021/2022 academic year, the Complainant was one of three temporary substitute teachers (herself, Mr. B and Ms. A) similarly employed to cover for other teachers on leave that year.

4. The fixed term / specified purpose of the said staff members contracts, came to an end at the end of the 2022 academic school year, as the staff members for whom they were covering were returning to their posts.

5. The sole reason for the termination of the employment of the said staff members, including the Complainant, was the return to work of the teachers for whom they were substituting. The staff members, including the Complainant were well aware from the time of interviewing for the substitute roles, and throughout their employment with the Respondent, that their employment would end accordingly. The Complainant does not say otherwise and acknowledges that she was a substitute teacher.

6. On 10 June 2022, the Principal, Mr. A met with the Complainant, with Ms. C also present. During this meeting, the Complainant did not dispute that the teachers for whom she was covering were returning to their posts. However, having canvassed information directly from other staff members about future parental leave, she asserted an unreasonable position that any future posts that arose, should be given directly to her. She referred to having a young family and financial/mortgage reasons. She stated that she knew that other teachers were going to look for parental leave arrangements for the following year and that Mr. A could give her one of those roles, as she would then get CID rights. Mr. A replied that no such position had been notified to him or to the Board at that stage and that there were three temporary staff in substitute positions at that time, all of whom may be interested in any vacancies that may arise. He advised the Complainant that it was not within his gift to simply appoint her to a role or to CID status and that he could not guarantee anyone a post. He mentioned a vacancy in another school which may have been of interest. It is absolutely denied that Mr. A tried to ‘strong-arm’ the Complainant into applying to another school, as alleged. On the contrary, he was merely trying to be helpful in circumstances where he could not guarantee the Complainant future employment or a CID.

7. Later that day, the Complainant telephoned Mr A. at home. She said she wanted to know whether the decision was coming down to a one v one choice between herself and Ms. A. She further stated that “if it’s me versus Ms. A, I’m a family woman and I feel I should get it”. Mr. A responded that this was not the case, that her fixed term/specified employment was coming to an end as the teachers for whom she was substituting were returning to their posts, and that any future vacancies would be filled by open recruitment. It is the case that the leave of the said staff members had not been confirmed by that date and no associated vacancy(ies) had been approved. It is of note that whilst Mr. A was approaching the matter in a fair and transparent manner, it was the Complainant that was seeking to procure discrimination by the Respondent against Ms. A on the basis of family status. Mr A kept a diary note of his discussions on that day, which have been translated from Irish at Appendix 3.

8. The Complainant thereafter contacted Mr. D, Chairman of the Board of Management, and similarly canvassed that she should be appointed to any future roles that might arise.

 9. The Complainant is incorrect when she asserts that Mr. B was “appointed there and then on the spot” on 10 June 2022. This simply did not happen. Rather, similarly to the Complainant, Mr. B’s fixed term employment ended at the end of the 2022 school year, as the teacher for whom he was substituting was returning and he was informed that any vacancies that arose subsequently would be advertised. Ms. A was similarly informed.

10. On 14 June 2022, the Complainant again approached Mr. A and stated that she could not understand why she could not keep her job. Mr. A stated his belief that he had already explained the position clearly. He further advised that he had sought advices from the CPSMA who had confirmed that there would be a break in her employment with the ending of her substitute post and that he could not simply appoint her to her another position. Mr. A reiterated that all future vacancies would be advertised and that the Complainant was of course, welcome to apply for them.

11. The Complainant’s fixed term/specified purpose employment with the Respondent ended on 17 June 2022, as did that of Mr. B and Ms. A.

12. By email of 21 July 2022 Appendix 4, the Complainant wrote to the Respondent, referring for the first time to Circular 0044/2019 and again asserting inter alia that Mr. A could “simply decide to give her (me) the role to help maintain her service within the school”. The Complainant further referred to her “young family”.

13. The substitute positions that were subsequently confirmed, were advertised publicly by the Board of Management in August 2022 and filled by open competition. There were four candidates altogether, including the Complainant, Mr. B, Ms. A and one other candidate(Ms.Dd).

14. The vacancies that arose, were not “the exact post” that the Complainant was covering in 2021/2022 as she has alleged on her complaint form. The teachers for whom the Complainant was substituting in 2021/2022 had returned to their posts and the Complainant’s temporary employment had ended. The vacancies that arose for 2022/2023 arose from different staff members taking leave and were new positions.

15. The four candidates aforesaid were interviewed in accordance with IPPN (Irish Primary Principal’s Network) guidelines. The Interview panel was comprised of the Principal, Mr. A, the Chairman of the Board, Mr. D and a third independent interviewer Ms. D. It is denied that Ms. D displayed anything other than a professional demeanour throughout the interview.

16. The Complainant was ranked third in interview performance Appendix 5. The two teachers who ranked first and second, Mr. B and Ms. A, were appointed from that competition, to the temporary posts. It is of note that of these successful candidates (Ms. A) was the same gender as the Complainant being female, and the other (Mr. B) was in the same age bracket, being in his 40s. Although all teachers are required to uphold the catholic ethos of the school, the Respondent is otherwise unaware of the religious practice of the candidates or the faith of their family members.

 RESPONSE TO EACH GROUND RELIED UPON BY THE COMPLAINANT

17. The Complainant has made many assertions on her Workplace Relations Complaint form, under each ground relied upon, which are in dispute and to which the Respondent replies as follows:

 Age Ground

18. The Complainant refers to two other teachers who were awarded permanent jobs during the time of her employment with the Respondent. It is assumed that the teachers referred to, were those who were appointed through the R Diocesan Redeployment Panel arrangements. The core function of the redeployment arrangements is to facilitate the redeployment of surplus permanent/CID holding teachers, to schools that have vacancies. Age does not feature as a factor in these appointments. Further information can be found at Appendix 6

19. The descriptions of the meeting of 10 June 2022 and the conversation between the Complainant and the Principal of 14 June 2022 as set out on the Complainant’s WRC complaint form are denied. In any event, the said descriptions of conversations do not disclose any circumstances that could constitute discrimination on the grounds of age. Mr. B was not told on the same day that he would be covering the other job share but regardless, he is in the same age bracket as the Complainant. The Complainant was not the longest serving substitute teacher in the school.

20. The requirement for job vacancies to be advertised for fourteen days was changed by Circular 20/2021 Appendix 7. The Complainant was clearly aware of the vacancy as she applied for it and was interviewed for it. In any event, each candidate was in the same position so it does not indicate discrimination on the grounds of age.

21. The standard Irish Primary Principals Network (IPPN) assessment criteria for interview were used. The Complainant was aware of these criteria having previously been interviewed under them. Again, each candidate received the exact same communication, by email, throughout the process so no discrimination on the grounds of age is identified.

22. Ms. A was appointed as she performed better at interview than the Complainant. She is not ‘a 20 something’ but is closer in age to the Complainant than alleged. Mr B who was also appointed from this competition is in the same age bracket as the Complainant so clearly the age bracket in question did not present any barrier to appointment.

23. The Respondent has a record of appointing candidates of all ages.

 Religion ground 

24. The religious origin of the names C... and W... are of no relevance or consequence to the Respondent.

25. The Complainant advised Mr. A that she had changed her name on the substitute teachers list to her maiden name. The Complainant herself volunteered to Mr. A that the reason she did so was her view that it would put her further up the said list alphabetically and also that catholic schools may call her more quickly. Mr. A accepted this without comment and referred to her by whichever name she wished. The use of the Complainant by her married name or otherwise, certainly had no impact on the expiry of the specified purpose for her employment as a substitute teacher in June 2022 or on the selection of candidates for the subsequent substitute roles that arose in August 2022.

26. If, which is denied, the vice principal called her by her married name, this was not in any discriminatory manner but rather can be explained by the Complainant using different names at different times.

27. The Respondent is aware only that the Complainant is qualified to teach, and agreed to uphold, the catholic ethos of the school. The Complainant has confirmed in her Complaint form that she is Catholic. The Respondent and in particular Mr. A is unaware whether the Complainant’s children are being raised in any particular faith or none and it has never arisen as an issue.

28. Mr B who was also appointed from this competition is also married to a person of the Protestant belief like the Complainant’s so clearly the religious matter in question did not present any barrier to appointment.

29. It is denied that there was any persistent questioning or mocking of the Complainant on the grounds of her religious belief. It is denied that the Complainant was told that she would be better off working up the road in the local Church of Ireland school or that she was constantly being asked by staff when her children were making their communion. The Complainant has not identified the circumstances or maker(s) of the alleged statements, which are denied. In any event, it is denied that such a general query would be discriminatory at all and in particular, it is denied that any such query was related to the expiry of the Complainant’s specified purpose contract or related to the recruitment to the substitute vacancies that arose in August 2022.

30. It is denied that grossly inappropriate messages were posted to the school’s staff WhatsApp group. They were certainly not offensive to the Complainant. The Complainant has presented a scenario whereby she used the WhatsApp group solely for work related messages and was offended by non-work related messages put up by other staff members. However this was far from the case and she has been selective and deliberately misleading in the messages that she has provided to the WRC. The Complainant in fact participated fully in the WhatsApp group, was encouraging of and showed appreciation for the contributions of others, as can be seen from a sample of her responses at Appendix 8. Although not relevant to the grounds on which she relies, she regularly posted pictures related to alcohol, and also related to gender, Appendix 9 The Complainant’s objection in her complaint form about the Monty Python sketch, is extremely curious when it was in fact the Complainant who encouraged its posting on the WhatsApp group, deceptively omitted from her own submission of documents Appendix 10. It is further denied that any of the said jokes were racist and furthermore, the Complainant willingly herself shared jokes based on race, which again she disingenuously omitted from her own submission of documentation Appendix 11. In any event, the Complainant does not have a claim on the race ground.

 31. It is denied that any of the material from WhatsApp, furnished by the Complainant to the WRC, demonstrates gross hypocrisy as alleged or at all. In particular it is denied that the said material had any impact whatsoever on the expiry of the Complainant’s specified purpose contract and/or selection of candidates at interview. The assertion that the children of the school have in any way been denied a staff body and management with integrity and a moral code and belief system, in the context of a friendly WhatsApp group, is deeply offensive and hurtful, without any foundation whatsoever and designed to damage the Respondent without any basis other than to serve the Complainant’s agenda and bolster her case before the WRC, in circumstances where the Complainant has been misleading in relation to her own contribution to the said group.

 Gender Ground

32. The description of the meeting of 10 June 2022 is in dispute as set out above. In particular, Mr. A did not call the Complainant in to his office to tell her “he had a job for next year but was not going to fill it until July or August”. It was the Complainant who, having canvassed information from other staff members, first referred to a position for the following year. Mr. A informed her that no vacancies existed at that time, and that if they arose, they would be advertised in July/August and this transpired to be the case. It is absolutely denied that anything “untoward, unlawful or unjust was afoot”.

33. It is denied that Mr. B was told on that day that he had been given a post for 2022/2023. Mr. B was told precisely the same as the Complainant, his temporary employment ended in June 2022 and he applied for and was interviewed for the vacancies in August 2022 in the same way as the Complainant. Mr. B will give evidence to that effect at the hearing.

34. Mr. B and the Complainant are of different genders but were treated in precisely the same manner in the same circumstances i.e. both of their employment ended in June 2022 and they were required to apply for and interview for a subsequent vacancy when it was advertised in August 2022. Mr. B was appointed having been successful at interview. In light of the foregoing, the question posed by the Complainant about Mr. B is moot.

35. Ms. A is of the same gender as the Complainant and she was appointed to one of the 2022/2023 substitute vacancies.

36. It is denied that Mr. A sought to strong arm the Complainant into taking a 6 month maternity post. He merely made a helpful suggestion as set out above.

37. The Complainant does not have a claim before the WRC for a contract of indefinite duration. However, it is clear from the detail on her complaint form, that Mr. A was never anything but supportive to the Complainant in this regard. It was not naïve of the Complainant to wait for the date when she would have acquired sufficient service to reapply – this was a requirement for a further application. This matter was wholly related to the length of the Complainant’s service and not at all related to her gender. Mr. A correctly advised her on 10th and 14th June, that he could not guarantee a future position or a CID. This was not dismissing her and/or shrugging her off. The Complainant was canvassing for a role that at that time did not exist, to the disadvantage of other potential candidates, including the other substitute teachers.

38. The Complainant has failed to attach the email from Ms. Z to which she refers and which constitutes hearsay. It is absolutely denied that Mr. A behaved in any immoral way, in dealing accurately and factually with the circumstances that arose. Furthermore, the description of the conversation with Mr. D is denied and Mr. D will gave evidence as set out above. The Complainant’s further attempts to unnecessarily impugn Mr. A’s good name are noteworthy and unrelated to her case.

39. The description of the conversation with Mr. D on 14th June is denied and will be a matter for evidence. It is denied that Mr. D shouted at the Complainant. In any event, nothing in the description of the phone call identifies any discrimination [pon the grounds of gender. It is denied that the Complainant received total disregard for her position by the Principal and/or verbal abuse from Mr. D as alleged or at all. The Complainant’s rhetorical questions as to whether a man would be treated in the same alleged manner do not reach the level of mere assertion, never mind evidence!

 Other

40. The remainder of the Complainant’s complaints about the interview panel do not disclose any discrimination or victimisation on the grounds of gender, age and/or religion and much of the said statements constitute hearsay and/or the Complainant’s own views. The Respondent reserves the right to address any such matters by way of further evidence or submission if necessary.

41. The assertions that the complainant’s career has been effectively ruined and/or that the schools of the area would close rank and that she would be pushed out, are without any foundation whatsoever, untrue and quite bizarre. There is nothing unusual in a substitute teacher post coming to an end when the post holder returns. There is no reason that the Complainant’s career would be adversely impacted. The Complainant remained on the substitute panel and the Respondent understands that she obtained employment for the 2022/2023 academic year. The Complainant is not entitled to compensation or to any relief.

 SUBMISSION

 Discrimination 

42. Section 6 of the Act sets out that

 6.— (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”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

43. It is submitted that the Complainant was not treated less favourably than a man, than a person of a different age or of a different religious belief, has been or would be treated in a comparable situation and that therefore discrimination has not occurred.

 Burden of Proof

44. Section 85A of the Employment Equality Acts provides: 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. Section 85A therefore requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. It is only if she succeeds in doing so, and only then, that is it for the Respondent to prove to the contrary.

45. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

46. In Melbury v. Valpeters the Labour Court stated that the Complainant must establish facts from which discrimination may be inferred and that it is required to be of sufficient significance to raise a presumption of discrimination and that “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”.

47. The established test for deciding if the probative burden shifts is set out in Southern Health Board v Mitchell [2001] E.L.R. 201 in which the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court held:

- 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 these 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.

48. In Meath County Council v McDermott1 Appendix 12, the Court stated that “mere assertion cannot be elevated to the level of fact. A complaint under the Act requires some evidence to support it”.

49. In this case, the Complainant has asserted an entitlement to have been appointed to a substitute position that arose for 2022/2023 academic year. She appears to do so, on the basis of her performance when employed the previous year as a substitute teacher, her family status and also the view, whether correct or not, that she would have been eligible for a CID if so appointed.

50. However, she has not established facts, on credible evidence or at all, from which discrimination on the grounds of age, gender or religion can be presumed or even identified.

 Dismissal for Discriminatory Reasons/ Dismissal for opposing discrimination

51. It does not appear to be in dispute that the teachers for whom the Complainant was substituting in the 2021/2022 academic year were returning to their posts. The end of the Complainant’s employment was wholly related to this reason and in no way related to the grounds relied upon. She has not identified facts to establish that she was dismissed for discriminatory reasons or that she was dismissed for opposing discrimination.

52. If the Complainant’s case is that Mr. B’s employment did not end in June 2022 because he is of a different gender, whereas her employment did end, such mere assertions, unless established as facts on credible evidence, cannot shift the Burden of Proof to the Respondent. In any event, in this case, the Complainant is simply incorrect in this assertion.

 Getting a Job

53. The Complainant has not identified anything about the interview process that indicates that discrimination occurred on the grounds of age, gender or religion. Any objections that she has raised to the process are firstly denied but also, are unrelated to the said grounds.

54.In the case of Co Louth VEC v Johnson2Appendix 13, the Labour Court concluded:” The mere fact that a younger employee and an employee of a different gender was promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred. It would be necessary to show that the Complainant was better qualified or met the criteria for promotion to a greater degree that the younger/female successful candidates. In that regard it is normal for the employer to determine the qualification or other criteria for promotions. The Court could only intervene if the qualifications or criteria selected were such as to be either directly or indirectly discriminatory. ……………….. The Court has consistently stated that it is not the responsibility of this Court to decide who was the most meritorious candidate for a position. The function of the Court is to determine whether the gender status or the age of the complainant influenced the decision of the employer. The Court is of the view that there is no viable evidence, which could indicate that the marks awarded were in any way, tainted by discrimination on the gender or age grounds”.

55. The Complainant herein, has not shown that she was better qualified or met the criteria for selection to a greater degree than the successful candidates. It is not for the Adjudication Officer to determine who the better candidate was and in this case it is submitted that there is no assertion or evidence that could indicate the marks awarded to the candidates were tainted by discrimination on the gender, age or religion ground.

56. The evidence is in fact clearly to the contrary where one of the successful candidates was the same gender as the Complainant and the other was in the same age bracket as her. The Complainant has not identified a comparator in relation to the Religion Ground.

57. O’Higgins v UCD3, is further authority for the fact that it is not the role of the Adjudication Officer to substitute its views on the merits of candidates for those of the designated decision makers, the only role being to ensure that the selection process is not tainted by unlawful discrimination. The principles cited, include inter alia that

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

58. It is submitted that in this case, there is no evidence of unfairness in the selection process or manifest irrationality in the result, such that the Adjudication Officer should look behind the result.

59. The Respondent further relies upon the case of The Board of Management of Scoil Mhuire agus Iosaf Junior School v Pamela Brennan4, Appendix 13 in which the Labour Court found: There is no evidence that the Complainant’s gender, or that of any of the other candidates, played any role in the panel’s assessment or decision. The evidence before the Court was that the successful candidate outperformed the Complainant by a country mile on the day and was, on that basis and that basis alone, selected for appointment to the post of Principal.

The complaints of victimisation were withdrawn.

CONCLUSION

63. Without prejudice to the foregoing, the Complainant has not established any facts on the basis of cogent evidence, or at all, to support her claims of discrimination or victimisation of the grounds of age, gender or religion.

64. In the case of a Teacher v a School5, Appendix 14 the Adjudication officer held that It is evident from the Complainant’s own evidence that she thought the outcome of the interview was a fait accompli and that she was bound to be offered one of the positions. While I acknowledge that the Complainant made her complaints to the WRC in good faith, it is clear from her evidence that she believed her status as an internal candidate with her experience over the years in the school would yield a guaranteed outcome. She appears to have been oblivious to the obligations on the school - having gone for competition because the vacancies had a duration of greater than 24 weeks - to have a process that would be fair and objective and free of favouritism for internal candidates. Her perceptions in this regard may have been informed by practises in other parts of the public sector where temporary vacancies of the duration set out in the instant case are filled through competition confined to existing employees.

65. Similarly in this case, the Complainant asserted a position in which she believed that her appointment to a future post was a fait accompli. She was oblivious to the obligations of the school to have a process that would be fair and objective and free of favouritism. It is clear from her WRC complaint form, that her belief that she was entitled to a post, arose from her own view of her performance, her family status and her wish to obtain a CID. These matters not only did not support her alleged entitlement to a post but were also wholly unrelated to her age, gender and/or religion. 

66. It is submitted that the Complainant’s claim is misconceived, frivolous and/or vexatious, and the Adjudication Officer is asked to dismiss the Complainant’s claim pursuant to Section 77A of the Employment Equality Acts which states:

 77A.—(1) The Director General of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

67. It is submitted that the burden of proof has not shifted to the Respondent. However, strictly without prejudice to the above submission and for the sake of completeness, if, which is denied, the Complainant did establish a prima facie case of discrimination, the evidence of the Respondent will rebut same, showing that the successful candidates for the 2022/2023 substitute posts were those who performed best at interview for the said posts and further that one was of the same age and the other the same gender as the Complainant, and if necessary the Adjudication Officer is asked to so find.

Witnesses for the Respondent

Summary of Pertinent Evidence of Mr. B

The witness confirmed he was married, his wife was of Church of Ireland faith and he was in his forties. His first conversation about further employment was approx. 2 weeks before the 10th June 2022 – he met the Principal – his contract was coming to an end and he asked about  the prospect of work in September – the Principal replied yes he thought there should be something in September but he was not sure what and  there was a reference to  parental leave – the Principal said he would let him know before school finished. He did not speak with the Principal after that. The witness referred to a conversation in the car with the Complainant and Mr. C – the Complainant was upset she had been told by the Principal that he – Mr. B was back and she - the Complainant was not back. The witness said that he confirmed that the Principal had said there should be work there for him but it wasn’t sorted and there was nothing definite. The witness said that when the Complainant came in she told him that the Principal told her he Mr. B was definitely back - and that the grid had his name on it.  A couple of days later the Principal spoke to the witness and Ms. A and said he wanted to speak to them and told them everything would be dealt with later in the summer and there would be interviews. The witness said that the Complainant would have known he had to go for interview. The witness said if he had a job he would have told his wife. When the Complainant said the Principal was giving him the job, the witness said he thought it was all sorted. The following Monday he was told there would be an interview. Mr. C texted him to tell him the job was up online.

Under cross examination the witness confirmed his educational qualifications - second class honours with a Masters in Education and chronicled his appointments to various schools in the area. The witness said that this was not his first teaching position. It was put to the witness that he said in his evidence that he was told by the Principal that work wise there should be something for him in September - the witness agreed. The witness was asked if had been talking to his colleagues. He was not sure if he discussed this with Mr. C – he came into his head when parental leave was mentioned. The witness was unsure as to who’s job he was covering. He confirmed that when the Complainant got into the car she said the Principal had told her “you are back”. He was questioned as to why he did not reply – “that’s not confirmed”. The witness replied that the Complainant told him it was a definite thing – he did not question her as he believed her. She said his name was on the job. He and Mr. C told her to ring the Principal and encouraged her to write to him.

The claimant’s representative referred to the exchange with the Principal, the witness and Ms. A where they were told the jobs were going to interview, that there were no guarantees and everything would be advertised. The  witness was referred to his evidence that that there should be something for him in September and replied that the Principal also said he was not sure. It was put to the witness that the first mention of interviews was after the Complainant contacted people about the job. It was put to the witness that he did not contradict the Complainant and that he just said nothing. When the Complainant said he was getting 5th class – he did not contradict her. The witness said he would have told people if he was offered the job. It was put to the witness that the Principal had a box with his name on it – the witness responded I believed what she was saying. He denied that he had met the Complainant on the beach and asserted that the Complainant would have known he was going for interview. It was put to the witness that he was either forgetting or not telling. It was put to the witness that he met the Complainant on the beach and was asking her about her interview – the witness replied “I have already answered that question”. The witness said the Principal had already told him he would have to go for interview. The witness confirmed he had submitted qualifications and his work history.

Summary of Pertinent Evidence of Mr. E – Vice Principal

The witness advised that he was Vice Principal of the school for 4 years. The first time he heard of the reference to tray bakes was when the subject was covered in the newspapers after one of the initial hearings. The witness said he had little cause to go into classrooms – as the school had an intercom. He would address the teacher in Irish. The witness said he had no recollection of calling the Complainant Mrs. W.... The witness repeated that he had no recall of calling the Complainant Mrs. W... – he had no business going into the classroom. When asked to clarify no recall, the witness said he did not do it. He denied he made reference to the Complainant being better off in T School doing tray bakes – he asserted that it never happened. He asserted he did not say it and did not remember it being said. He had no recollection of tray bakes and asserted he definitely did not say it.

 Summary of pertinent evidence of Ms. C

The witness had 18 years’ experience and was a senior member of staff. She was referred to the allegations by the Complainant of a toxic environment and a fratboy environment – the witness said her colleagues were a decent bunch – she heard no reference to comments on traybakes. The witness said the Principal asked her to attend a meeting on the 10th Jun 2022 – the Complainant came in and asked about her contract and the Principal explained it to her - when the Complainant referred to other staff on parental leave, the Principal responded he was not sure – not all was sorted out – that  staff were still looking at parental leave –  and that the end of one contract could be a new contract with different people. The Principal said he would be saying the same to Ms. A The witness said the Principal referred to the job in K School and the supplementary panel. He acknowledged the Complainant’s contribution to the school. The witness said the Complainant became upset and was not hearing what she wanted to hear. The witness said there was no mention of Mr. B. The witness did not see the Principal drawing a box. The witness said things had changed since she was subbing – the nature of contracts – part-time, fixed-term, CIDS were not part of her role as she was not on the senior management team.

The witness said the Principal asked her to come into the room – she was in the room next door to the office. The witness was asked if she was given a reason for being asked to join the meeting – the witness replied she had been asked on previous occasions – it is something we did in the school – having 2 members of staff present.

Under cross examination, the witness said that the Principal asked the Complainant if she was ok with the witness being there and the Complainant said yes. The witness was questioned on  Ms. A and Mr. B walking down the hall, being called in and told there would have to be interviews. The witness confirmed she was not asked to attend that meeting. The witness was asked if Mr. B was called to the office about future work – the witness said she did not know and was not asked to attend any such meeting. At no point was she asked to come in.

The witness confirmed she was part of the WhatsApp group. She did not recall the WhatsApp post about the flight – she indicated there was a lot of WhatsApp activity during Covid – she said it wasn’t racist – The witness was unaware of any comments about traybakes – she heard the Complainant being addressed as A or Ms. C.

At the meeting the Principal told the Complainant he was in the process of finding out about parental leave take up – the witness heard of the diary note at the WRC hearing. The witness said the Principal might have shown the diary note to her when the court was coming up and said to her you will need to recall what happened.

The witness said that the Principal did not take notes. The witness confirmed the Principal said there was going to be a post coming up next year but the contract would be different and he referred to other staff members. The witness said the Principal said he wasn’t sure. He was clarifying that the Complainant’s contract was ending. When the Complainant referred to others looking at parental leave, the Principal said parental leave/jobshare would be 6 weeks and jobs would come to an end. The witness was asked why the Complainant would ask “so it’s between myself and Ms. A” and the witness was advised by the Complainant’s rep that the Complainant would say that was because he had told her that Mr. B was getting the job. The witness said that that was not said at the meeting while she – the witness - was present. The witness was asked in her 18 years’ experience how often she was brought into a meeting and she replied 2-3 times.

The witness confirmed that attending management meetings was at the Principal’s discretion. The witness confirmed that she was aware that the Complainant had previously been appointed as a substitute by Mr. A by designation – without interview.

 Summary of pertinent evidence of Mr. C

The witness described his relationship with the Complainant as a close personal friend and that he car shared with the Complainant. He confirmed that the Complainant was very upset when she got into the car on the 10th June and said she wouldn’t be back next year. He and Mr. B encouraged her to write to the Principal and she messaged him to confirm that she did that. The  witness said he did not recall  the comments about Mr. B being back and getting 5th.class -  the witness accepted he may not have heard the comments. . The witness sent a link to the Complainant and Mr. B to apply for the jobs. He said he took parental leave. A number of people were looking for parental leave but it had not been formalised. He availed of parental leave from September. The  witness confirmed that he had told the Complainant that he had decided to take parental leave and had shared with the Principal that he would be applying for it.  The witness said he did not know if the Complainant had applied for the job. He referred to parroting back what the Complainant said in an effort to console her. The witness refuted being party to a reference to the Complainant being better suited to T School for tray baking. The witness did not recall precisely when he applied for parental leave. The witness did not recall contact with the Complainant about interviews. The witness denied that the reference to traybakes took place in the staff room – he suggested the  Complainant herself had referred to being better of making tray bakes in T school in a conversation between the 2 of them when they were car pooling.

 Summary of Pertinent evidence of Ms. D – Independent Assessor

The witness said she worked as School Principal for 22 years and had received training from the INTO the CPSMA and had kept her skills up to date. The witness said she had very limited contact with Mr. E about football and did not stay on the committee in Bb. The witness denied the allegations made by the Complainant about her demeanour, hostility and being disdainful.

The witness said the issuing of notification to candidates of the IPPN guidelines had nothing to do with her. The witness said she was fair on the day – when asked to clarify the failure to recognise the Complainant’s teaching experience the witness replied that suitability was taken into account as well as qualifications. The witness said she was trying to think back – but the events had taken place 2 years ago. The witness said that criteria were agreed prior to opening the applications. She said their focus was on professional qualifications regarding teaching and education.

Under cross examination the witness said she seldom met Mr. E – he had been Chair of the Sports Committee and she was PRO. The witness said she was unsure about how many positions were available for applicants for interview. She said usually a panel was drawn up for vacancies that may arise but she did not recall how many positions were available – she was there as Independent Assessor. The witness said the interview Board met the week before the interview and went with the IPPN criteria. The witness said the matter of notifying candidates of job criteria was nothing to do with her. She was unaware of criteria being given to candidates. The witness said she marked the score sheet at the end of the interviews. There were no notes taken and the Board decided and came to a collective mark on the first 2 criteria. The witness said she was independent on the day. When asked who took the decision not to take notes – the witness replied this was policy and that she “was happy to go along with it”.  The witness was asked who directed how the process should work the witness replied it wasn’t me. The witness was asked how she differentiated between degrees and qualifications having said that they sat down and agreed on scores – the witness confirmed everyone got 16-20 points bar Ms. Dd.  – she said Ms. Dd scored less because she had less experience. When questioned about Mr. B qualifying in 2018 and the Complainant qualifying in 2016, the witness responded that suitability was taken into account. She was happy the process was transparent and honest. When asked why the Complainant was not marked higher on teaching experience the witness said she was being questioned on something that happened 2 years ago and said it was difficult to remember. There were 4 excellent candidates and we decided together they warranted 20 marks. The witness categorically refuted the Complainant’s allegations about hostility and demeanour.

The adoption of the IPPN criteria and the interview questions were decided on the day the interview Panel met and the interviews went ahead the following week.

When challenged on the marks awarded to the Complainant vis a vis experience and qualifications and how all 3 internal candidates were assigned the same number of marks for the first 2 criteria i.e. “Suitability of qualification and Teaching Experience” & “Professional Competence and Satisfactory References “ the witness replied we looked at professional qualifications with respect to teaching and education – competency in teaching was based on the application form – the witness said the Complainant scored 20 marks as did everyone else. The witness said that suitability was taken into account as well as qualifications. The witness said there was a blanket mark covering suitability of qualifications and teaching experience. When asked why the Complainant was not marked up or down the witness replied she was trying to think back. The witness did not clarify why there was no distinction drawn between the candidates with respect to the 2 objective criteria set out above - the witness replied she was happy the process was transparent and honest – the decision was discussed at length and the witness was happy with the collective decision. It was put to the witness that the successful candidate Mr. B had less teaching experience than the Complainant – the witness replied that competency in teaching was based on the application form. It was put to the witness that 4 people showed for interview with different professional competence – the witness replied that the Board felt they warranted that mark – there were 4 excellent candidates.

It was put to the witness that the candidates were denied a comparative analysis where qualifications and experience could be evaluated and compared and marked according to the outcome of same – the witness did not respond. The witness was not sure about how the scores were put together – she recalled signing something. The witness categorically refuted the Complainant’s allegation of hostility.

Summary of Pertinent Evidence of Mr. D Chairperson of the Board

The witness confirmed that his background and career and advised that he was currently on the Board of 3 schools. He worked as a chaplain and qualified and practised as a psychotherapist. He had received training in interview skills, equality and objectivity. He could only recall one phone call with the Complainant. The witness undertook to speak with the Principal after the Complainant relayed her upset and concern about the job. The Complainant had told him she had spoken with colleagues. The witness said he had no recollection of a second conversation. He was asked if he said “I took my eye off the ball” – he replied that all matters such as parental leave were handled by the Principal. He did not refer to “My Child” and was not sure if he said Mr.A had jumped the gun. The witness said he told the Complainant to go to the union if anything inappropriate had happened. The witness said he was not involved in administration – the Principal as Secretary to the Board looked after that. The witness said Mr. B was not appointed prior to the Interview.

The witness said that he found Ms.D  very professional caring and courteous. He confirmed that he sent the aggregate marks to the Complainant. When asked if he recalled the criteria and scoring, the Complainant said he could not remember a lot of the detail – he said that he and the Principal took advice from RD in the Dept.

The witness did not recall the details of compliance with Circular 44/2019. The Principal and he discussed the appointment of an Independent Assessor – it may have been his decision to appoint her but he did not recall. His recollection of the Board of Management meeting was unclear. The witness was unaware of the June 10th meeting. Job sharing and appointments were approved by the Board. The witness was unaware of arrangements for filling of posts of less than 24 week duration – he said management would check and come to the Board for sanction. The witness was unaware of how many posts were to be filled – he said Mr. A said he wouldn’t know until the summer time. The witness did not recall when they met to discuss the criteria.

The witness did not recall who decided on what the criteria would be. He said we were struggling to find a balance –  “we agreed to score them the same”. The policy not to take notes he said was agreed by all of us beforehand. He said there were 4 candidates and we would manage to remember. The witness confirmed that the score sheets were filled out after all the interviews.

The witness said we gave each person the fairest opportunity.

Under Cross examination when asked to explain the rationale for the scores – with counsel for the Complainant contending that the Complainant- having better qualifications and longer teaching experience than Mr. B - why she did not get any additional credit, the witness responded that they felt all were competent and suitable and they marked as fairly as possible. The witness said the qualifications were difficult to work out – he referred to different skill sets - he said” we thought each candidate would be fairly treated”. He said it was difficult to work out and differentiate between qualifications. He said they discussed teaching experience and they gave each person the fairest opportunity. When asked to explain why less marks were awarded to the external candidate, the witness could not recall why lower points were awarded to the external candidate for suitability of qualifications and teaching experience than the 3 internal candidates. The witness could not recall why Ms. A  got the same score as the Complainant for qualifications. The witness was unclear on the rationale for equalising the marks for the objective criteria across all 3 internal candidates.

The witness did not remember the exact date the Complainant called him – he may have been at a conference at the time and he remembered her being upset on the phone. He did not recall a second conversation. The witness said that he was not fully in touch with the school at that time – his brother had died. It was put to the witness that he made the comment about his eye off the ball because he wasn’t actively engaged in recruitment and he left everything to the Principal. He told the Complainant that he would contact the Principal and they consulted with the CPMSA – he did not remember if it was he or the Principal who called. The witness was asked if the Principal told him that he spoke with Mr. B and there would be something for him in September – he said No. The witness was aware that the Principal was going to tell the Complainant that her contract was coming to an end. The witness was asked why the Complainant was told her contract was coming to an end when there was a job share position coming up in February and she could have interviewed for it – the witness responded that he did not know. The witness did not recall the further contact from the Complainant – unless he had morphed the 2 statements together. It was put to him that the Complainant said that he was very different on the second occasion she spoke with him and was very annoyed referring to her talking to staff and jumping the gun. The witness said that the terminology “my child” is not language he would use.

The witness was unaware if he decided on the selection of the Independent Assessor. He was unaware that the Principal had indicated that there would be work for Mr. B in September. The witness said the Board of Management approve job sharing applications and appoint people through correct procedures. The witness was unaware if posts of less than 24 weeks duration were arising. He did not know how many posts were to be filled. The witness did not recall when the panel met to decide upon the selection criteria. The witness did not recall what the selection criteria would be. The witness said that unlike the Principal he did not have access to the IPPN website. The witness said the policy on not taking notes was agreed “by all of us beforehand”. When asked to distinguish between marks awarded to the Complainant and Mr. B the witness responded that each candidate would be fairly treated and that teaching experience had been discussed. The view was that all the candidates were suitable and competent.

It was put to the witness that he scored 4-5 points more for Mr. B than the other candidates - the witness responded “our reasoning was to be fair to everybody”. He went to the side when filling the score sheet. The witness did not recall who told the successful candidates of the outcome. The witness did not recall when the Board met to appoint the candidates. The witness said he filled out a sheet with all the scores. He did not recall submitting a written report to the Board. The witness did not recall the reason why the first 2 columns on the marking sheet were scored the same for all 3 internal candidates – he said the criteria depends on the posts – he said we met and went through everything - the witness said he was unsure if the criteria was decided after the applications were opened. The witness gave an account of his exchanges with the complainant after the result was issued – he was in Tralee at the time and had suffered a personal bereavement.

It was put to the witness that he scored 93 marks for the first ranked candidate which resulted in the complainant scoring between 3 and 6 points lower than the other panel members. The witness was asked if this was done purposely to facilitate the first ranked candidate. The witness responded that “the reason why we awarded the marks was to be fair to everybody”.

On re-examination the witness confirmed all candidates were treated fairly. He said the criteria depends on the post being filled and the panel met to go through everything.

Summary of Pertinent Evidence of Mr. A – School Principal

Mr. A  summarised as follows  in relation to the ongoing exchanges and meetings between him and the complainant over the week commencing 10th June 2022:

Mr. A stated that when he spoke to the complainant about the K job she indicated that she wanted to stay at her own school. He said that the vacancy was for 6 months and it could turn into a permanent job. He said that the Complainant was of the opinion that it was right that she should get a job-he replied there were other candidates in the school and he would not be able to do that. Mr. A said he had obtained advice from the CPSMA and was aware that there were 3 other people going on the supplementary panel and he could not provide any certainty for the Complainant about the outcome of the recruitment process. When the Principal referred to K school and the possibility of 6 months maternity leave the Complainant said I would like to stay here. When the Principal referenced the Supplementary Panel and suggested that if she got a call she would have to accept it the Complainant replied I won’t and I don’t have to accept it. When the complainant spoke about enjoying the job, feeling part of the community and getting on with parents and pupils, Mr. A said he replied that he understood all of this and agreed with her in relation to the children but that was not the question. He advised that he said her job was coming to an end and there was no longer a viable post to offer. He indicated there would be a different teacher in the school and asserted that the claimant believed it was right that she get the job. He indicated that there were others in the same position as her in the school and he would not be able to do that. Mr. A acknowledged he had good reports from parents and students, that the Complainant had integrated into the community and referred to her dedication. He said that at the meeting on the 14th June he told the claimant he could not provide her with certainty and the Board of Management would confirm a new post if it happened later.

The Principal confirmed he had 25 years’ experience as a Principal, had conducted in excess of 40-50 interviews and had received non bias training. He referenced the Complainant’s comments on the supplementary panel. He estimated that the last 10 appointments to teaching positions were from a   range of age brackets – 3 were >50, 3 > 40 3> 30 and one in their 20’s. The witness said he assisted the Complainant with her application for a CID but it was unsuccessful and she did not appeal it. In the summer of 2022, the Complainant got on the supplementary panel along with 2 others. The witness referred to parental leave applications and job share applications - he said the Board was obliged to grant parental leave – it can be deferred but only in exceptional circumstances. He said job sharing was different and the applications had to be submitted by the 1st Feb. The witness confirmed that he did say to Mr. B – there will be work but he did not know the details as it was unclear as yet what teachers would be returning from parental leave. The witness said he was not sure if he said “there would be work there for you” but he was not disagreeing with Mr. B’s evidence – he never intended saying there “was a job for you”. The witness said that Mr. B’s evidence was that he did not go home to tell his wife. The witness said that Mr. B’s evidence was that he did not think he was appointed.

With respect to the meeting on June 10th  – the witness said that Ms. C was invited – it was a thing he would do – have a second person there – it was a more reliable way of conducting a meeting. The witness said the Complainant asked for the meeting he did not call her. He told the Complainant that her contract was coming to an end and there was no discussion about anybody else. He never mentioned Mr. B.  The witness said that the Complainant asked about Ms. A but he did not discuss it. The witness said he had no knowledge as to why the Complainant would tell Mr. B in the car that he was getting back. The witness said when Mr. D called him about the conversation with the Complainant they decided to ring the CPSMA – Mr. RD - who told him he would have to advertise the position and conduct an interview in accordance with circular 00 44/2019.

 The witness said that the Complainant rang him saying that she thought she should get the job and that she was the second longest sub in the school. Mr. D was difficult to contact over the summer – his brother had passed away. The witness told the Complainant the job would be advertised and open to everybody. He also told Mr. B and Ms. A that when he knew the positions he would be advertising the post in July / August. When the Complainant left school on the 17th.June she said I might see you in September and he responded whatever happens happens.

 The witness said he never received complaints about the culture in the school and the tray bake comment never happened.

The witness said he first knew the Complainant as Mrs. W... and that was her name in his phone book but her name was C... on the Teaching Council register. He recalled a conversation with the Complainant about using the C surname to move her name up the list on the INTO sub panel and she might be called quicker for work. The witness said that thereafter he addressed the Complainant as Mrs. C... at all times. He did not know the Complainant’s religion or her husband’s and did not know the religion of Mr. B’s wife.

The witness confirmed that as with most interviews they used IPPN sheets. He considered Ms. D to be most professional – there were only 4 candidates – no notes were taken – it was his preferred way – “to recall by memory”.

The interview took about 2 hours – they had a discussion about suitability – one person had a Masters – Level 9 – the HDip was different it was level 8. They had to be consistent about the value of a Masters Degree. They marked the other columns when all the interviews were over. They aggregated the scores and the top 2 candidates were to be appointed. The successful candidates were 1 male and 1 female – 1 in forties and one in mid 30’s. If the offer was declined they would have moved to number 3 – the Complainant. It was ratified by the Board.

The witness confirmed he did not circulate the selection criteria to any candidate. The witness said the union never contacted him.

Under cross examination, the witness confirmed that he believed the Complainant’s work history – which involved a lot of days here and there and a number of schools to be correct. He said the Complainant came in on a rolling subbing break – it depended on what teachers were coming back. When asked if he was relying on the circular the witness replied everyone was there on a fixed-term so no matter what way you looked at it, it had to be advertised. It was put to the witness that the Complainant was on her second contract and the witness replied all positions were coming to an end and the advice was to advertise. The advice to advertise came from the INTO and the CPSMA. The witness was asked if he said to the Complainant that it had to do with 6(i) and the witness replied that was a red herring – the advice was from the CPSMA to advertise. The witness was referred to another teacher who did not have to do an interview – the witness said she was not on a rolling contract and was covering a vacancy.

The witness was asked why he did not say to Mr. B when he asked about work for the following year that he would not discuss it with him. The witness was asked why he did not say to Mr. B this is formal – I am going to get someone to sit in. It was put to the witness that Mr. B asked about work and was told that there would be something for you in September and 2 weeks later when the Complainant asked she was given no such assurance. It was put to the witness that the Complainants exchange was a formal meeting with a third party but the exchange with Mr. B was different. The witness responded that he did not treat the Complainant any differently. She asked for a meeting and at the last minute he brought in Ms. C. The witness said he always intended to have a third person at meetings. When it was put to the witness that he formalised the meeting with the Complainant, the witness said his exchange with Mr. B was a casual chat about work. The witness said that on the 10th June, Mr. C had told him he wanted parental leave but it was not definite at that point. It was put to the witness that at that point that he had made his mind up that Mr. B was getting the parental leave job.

It was put to the witness that the only reason the Complainant said –“is it between me and Ms. A “ because he had taken Mr. B out of the equation. The witness replied I never spoke about Mr. B at that meeting –“She learned for the first time in the back of the car is what she said”. It was put to the witness “why would the Complainant refer to Ms. A if Mr. B was still in the equation”. It was put to the witness that the Complainant totally disagrees that she said “I am a family woman” and never said she should get the job because she was a family woman. It was put to the witness that he had changed his answer several times with respect to the June 10th meeting. The witness said that when he met Mr. B and Ms. A in the hall that he told them when the whole situation was known the school would advertise when they knew the position. The witness said it was at the discretion of the Principal to go for interview or fill a post by competition. The witness said he advertised a .5 post and parental leave. After interview Mr. B was called and offered a post and the second person was offered a parental leave.

The witness said that he never took notes at interview and that” we agreed we would not take notes.” The witness said the internal candidates got 16 points for suitability of qualifications and teaching experience and the 4th candidate was marked lower because she had less teaching experience. The witness was asked why the Complainant did not get any additional marks over and above Mr. B when she had longer experience than him – the witness responded there was very little between them – the witness did not add up the days – they were in the same bracket. The witness said Ms. A had significantly more experience than either of them. When asked why the Complainant was not given credit for her additional qualifications, the witness responded that we felt there was no real difference - the 3 candidates were similar – he said there were swings and roundabouts. He did not add up the marks – there was very little between them. The witness was asked why all candidates got the same mark for professional competence – he replied he was the referee. The witness said the experience of the 3 internal candidates was similar – they were all in the same bracket. It was put to the witness that he had already appointed Mr. B  – the witness replied that Mr. B was not appointed and this allegation was speculation. It was put to the witness that he had to ensure that Mr. B got the interview – this was denied. It was put to the witness that he had laughed at the tray bake comment – this was denied.

On redirect the witness was referred to the Complainant’s letter to him of 21 July 2022 which had been submitted into evidence about her qualifications and suitability for the post. The witness said the Complainant’s qualifications were Level 8 and Mr. B’s were level 9.

The witness gave an account of the differing panels that operate for permanent posts in the primary school sector – he clarified that Ms. B was appointed from a supplementary panel – where 2 years’ service was a requirement - and the Complainant subsequently got on the supplementary panel for the R area. The witness said that Contracts of Indefinite Duration only arose if there was a permanent vacancy in the school. The witness advised that there was no grounds for the Complainant to lodge an appeal in relation to a CID as they had no permanent vacancy in the school. When asked if in hindsight the witness ought to have taken notes during the interview process, the witness replied that there would not have been any advantage to doing so. He saw it as a personal thing – that there were a small number of candidates – the time span was 1-2 hours and the interaction with the candidates could be lost if he was focused on writing up notes. The witness said it was his personal decision not to take notes and he did not find it challenging when questioned on difficulties with recalling the individual candidates’ answers. The witness accepted that the candidates had not been furnished with IPPN guidelines – he said it was not common practise. The witness advised that the panel used IPPN guidelines in devising the marking system and stated that this process took place prior to the applications being opened.

The witness said the Complainant had at all times expressed happiness while working at the school and had sent him a positive text message the day she left. She was very much part of the school. The witness was aghast when the Complainant corresponded with the Board. With respect to WhatsApp messages, the witness said the Complainant had been inconsistent in her evidence – there were multiple messages she had ‘liked’- including emojis that were personally offensive and the witness submitted that the Complainant had been a willing participant in the group. The witness said he did not condone the messages posted – he confirmed he was a member of the group and did not intervene to halt the posts.

The witness said the school had been commended in the Science Inspection that had been carried out by the Department of Education & Science – the results were very positive about the school’s culture and environment and were deemed to be service oriented.

The witness said all candidates were marked individually and marks were aggregated at the end. The witness said there was no discrimination. He said he gave the same message to all staff including the successful candidates and advised them that their contracts were coming to an end. The witness was questioned by the Complainant’s representative on whether the person placed No. 2 on the panel was notified of the outcome of the interview the same day as the Complainant and it was put to him that he knew as far back as June what vacancies would be arising. The witness referenced a number of Ukrainian pupils starting  and the potential for some hours arising from same. The witness undertook to submit a copy of the advertisement for the job to the WRC.

Summary of Pertinent Matters raised in Respondent’s concluding submission and not addressed in the pre hearing submission to the WRC:

Submissions on Chronology /Background

It was submitted that the respondent was denying all of the complainant’s claims and that the evidence adduced during the hearings supported the employer’s position as set out in the pre-hearing submission to the WRC.

It was submitted that the complainant had accepted in her evidence that her employment and the employment of Mr. B and Ms. A came to an end in June 2022 as the permanent staff members for whom they were covering were returning to their posts. It was asserted that the undisputed evidence was that Mr. B was the longest serving of these substitute teachers.

It was accepted that both Mr. A & Mr. B in their evidence said that Mr. A indicated that there would be some work the following year. It was accepted that Mr. B stated in his evidence that the Principal said “there should be something for you”. It was submitted that the Principal said that he did not mean there was work available specifically for Mr. B but rather that there will be some work.  “It was not in the context of you”. Applications and approval for parental leave were not confirmed at the time.

Meeting of the 10th June 2022

It was acknowledged that the exchanges that took place between the complainant and Mr. A (also attended by Ms. C) at the meeting on the 10th June 2022 were in dispute. A summary of the pertinent evidence of all 3 in attendance is set out in the earlier Section of this decision. It was submitted that Mr. A gave evidence that there was no mention of Mr. B at the meeting and this was corroborated by Ms. C. It was submitted that the complainant had acknowledged that she may have referred to her young family during the meeting and referred to being under stress about the prospect of unemployment. It was submitted that Ms. C stated in her evidence that the matter of Mr. A stating that Mr. B was getting 5th class was not stated when she was present.

It was submitted that there were contradictions between the evidence of the complainant and Mr. B with respect to the exchanges between them in the car following the meeting between the complainant and Mr. A about whether Mr. B “was back”. It was submitted that there may have been a misunderstanding on the part of the Complainant and that the evidence of Mr. A and Ms. C was definitive that no such comment was made during the meeting that day.

It was submitted that both Mr. A and Mr. D decided to contact the CPSMA (Catholic Primary School Management Association) after they discussed the contact between the claimant and Mr. D and they were advised to advertise positions for the following year. Mr. D gave evidence that he suffered a bereavement around that time.

The respondent opened into evidence the complainant’s text of the 17th June 2022.

“Hi John, I got some lovely messages from the parents today. Thought you might like to read them. Thanks for the opportunity of working with such a wonderful team of people”.

It was submitted that Mr. A had said that the message reflected the spirit of how it was left between them and that it was inconsistent with an assertion of a toxic atmosphere in the school. It was submitted that the complainant rowed back from her assertion that Mr. B was never interviewed for the positions at issue.

Interviews

It was submitted that it had been accepted in evidence that a Masters Degree (held by Mr. B) was a level 9 course and of longer duration. The complainant’s degree was a level 8 and she had secured a first class honour. The claimant gave evidence of her other qualifications:

including a B Arch (Pass), a BSc Architectural 2.2 Hons, a B Des in Textile Design (2.1) and CPD in accordance with her application from.

Independent Assessor (Ms. D)

It was advanced that there was no discussion about the candidates prior to the interviews.

It was submitted that Ms. D stated on cross examination the panel met the week before to establish the criteria using the IPPN criteria and that she was not involved in sending criteria to candidates.

It was submitted that it was the Assessors evidence that the first 2 boxes “Suitability of Qualification and Teaching Experience “and Professional competence and satisfactory references” were marked collectively and the last boxes were marked themselves.

It was submitted that under cross examination the complainant’s qualifications were compared with Mr. B, that both had various qualifications and she replied that they were looking at qualifications relating to teaching and that Mr. B had a Masters Degree whereas the claimant had only a Higher Diploma.

It was submitted that the Assessor when asked about Criteria 2, (competence) the complainant scored a very high mark, 20, and they were all excellent candidates and that’s why they scored 20.

It was submitted that the assessor noted that the candidates were of a very high calibre; she did not mark until after the 4th Candidate and there was very little between them. She stated the majority of interviewers do not take notes.

Mr. D

Mr. D set out a chronology of his experience and training as an interviewer.

It was submitted that Mr. D did not recall details of the scoring. He had suffered a personal bereavement around that time. It was submitted that he stated that everyone was suitably qualified, professionally competent. He said it was decided not to take notes. He said everyone was treated the same and fairly.

Mr. A

It was submitted that Mr. A noted that he gave the complainant a higher mark over all – “scoring her the highest”. He said that if either of the 2 highest candidates Mr. B or Ms. A had turned down the role the job would have been offered to the complainant.

Mr. A confirmed that he did not send the interview criteria in advance to the candidates.

Mr. A noted that the complainant had a lot of days subbing here and there.

It was submitted that when actual experience was added up, he believed Mr. B had longer experience than the complainant “or there was only marginal difference”.

It was submitted that when put to Mr. A on cross examination that the complainant did not get credit for a first class honour in her teaching qualification, he advised that she did get credit but that she had a level 8 versus. Mr. B who had a level 9 qualification. He had been a referee for 3 of the candidates. He stated that all 3 candidates were treated fairly.

It was submitted that all of the candidates in the interview were treated in precisely the same way in relation to advertisement of the role, advance notice of IPPN criteria, questions asked and note taking. It was submitted that there was no evidence of the complainant being treated any differently to other candidates which would indicate discrimination on the grounds of gender.

Evidence Specific to Each Ground Relied upon by The Complainant.

Age

It was submitted that it had been accepted in evidence by the complainant that Mr. B was in the same age bracket as her and that this was inconsistent with an allegation of discriminatory treatment on age grounds.

The complainant had alleged that Ms. A was twenty something when she was in her 30’s.

There was no evidence before the interview panel of the complainant’s age.

Statistical evidence was presented by Mr. A of the last 10 successful appointees – already outlined in the evidence of Mr. A. It was submitted that the statistics were inconsistent with the complainant’s assertion of discrimination on age grounds.

Gender

It was submitted that the complainant’s assertion that Mr. B was told on the 10th June 2020 that he had been given a post for 2022/2023 was inconsistent and contrary to the evidence of Mr. B and other witnesses.

While the complainant and Mr. B were of different genders, they were treated in precisely the same manner and in the same circumstances.

There was no evidence of discriminatory questions on the job application or at interview.

It was submitted that the fact that Mr. B is of a different gender to the Complainant did not constitute evidence of discrimination.

Religion

It was submitted that the complainant failed to provide a valid comparator.

It was submitted that while the complainant was married to a person of the Protestant religion Mr. B’s spouse was also Protestant and this was inconsistent with an allegation of discrimination on the basis of religion.

It was submitted that no comparator was advanced with respect to the matter of the use of the complainant’s Protestant name.

It was submitted that the complainant’s allegations were denied by Mr. E and that no specific dates or instances were identified with respect to these allegations.

It was submitted that the Complainant frequently used her Protestant surname.

It was submitted that the traybakes allegations were disputed by the respondent’s witnesses.

It was submitted that the claimant did not make any complaints to the respondent with respect to these allegations.

It was submitted that there was no evidence before the AO that the panel were aware of the claimant’s religion.

The WhatApp Group allegations

It was submitted that the evidence of the claimant were deliberately misleading and reflects upon the credibility of the complainant. It was submitted that there was no evidence of panel members Mr. D or Ms. D being aware of the Whatsapp messages.

It was submitted that the messages had no negative impact on the marks awarded to the complainant.

Alleged Toxic Atmosphere

These allegations were denied by Mr. A and Ms. C in her evidence and it was advanced that the evidence of the DES report was positive of the school.

It was submitted that the claimant made no complaint about the atmosphere in the school until after her application for a job in 2022/2023 was unsuccessful.

It was submitted that her evidence about her relationship with the staff contradicts these allegations.

Supplemental Legal Submissions:

The original submissions were repeated. It was submitted that the allegations made by the claimant are largely no more than mere assertions that cannot be elevated to the status of evidence and that the complainant has failed to establish a prima facie case as required, on the gender, age or religion ground.

Appointment of Mr. B

It was acknowledged that Mr. B temporarily concluded as a result of his conversation with Mr. A that he would be given a post the following year and consequently did not contradict the claimant when she told him in the car that he was back. It was submitted that both Mr. A and Mr. B were consistent in their evidence that their conversation was couched in uncertainty and nothing was finalised about positions for the following years.

It was submitted that the evidence adduced during the hearing was absolutely contrary to the complainant’s assertion that Mr. B was appointed on the 10th June.

Interviews

It was noted that there was evidence that the selection criteria were not notified in advance to candidates but it was submitted that each candidate was in the same position and the complainant had not identified any way that this could have disadvantaged her by reason of age, gender or religion. It was submitted that the complainant disregarded the fact that marks were awarded on interview performance and not on the basis of performance or popularity with parents. It was submitted that there were similarities with case No EDA1619 National Advocacy Service v Mary Linehan where the Court had concluded that the claimant’s case was predicated largely on a lack of understanding of the nature of semi structured competency based interviewing.

Comparisons were drawn with EDA042 Kathleen Moore Walsh v Waterford Institute of Technology where it was held:

“On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practise .Where this is found to be the case , and 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.

On the evidence adduced the complainant has not established to the satisfaction of the Court that the marks awarded by the interview board as between her and the successful candidate were irrational or unfair”.

It was submitted that the Interview Panel Members gave good and cogent reasons for not keeping interview notes, including that there were only 4 candidates and they wanted to give full attention to the interviews.

It was submitted that the AO should consider the claimant’s credibility in light of the evidence adduced and the respondent presented a list of alleged inconsistencies that it was submitted supported the respondents expressed concerns about the claimant’s credibility that emerged during her evidence.

In summary and conclusion it was submitted that the Complainant has failed to establish a prima facie case of discrimination on the grounds of age, gender or religion, in relation to getting a job, dismissing her or at all, or of victimisation, such that the burden of proof shifts to the Respondent. The Adjudication Officer is asked to find accordingly.

 Without prejudice and in the alternative, if a prima facie case has been established, it was submitted that it has been rebutted by clear and cogent evidence on behalf of the Respondent.

Findings and Conclusions:

I have reviewed the evidence presented at the hearings and taken into account the voluminous submissions made by the representatives, the evidence of the witnesses and considered the authorities relied upon by the Complainant and the respondent’s representatives.

 In making my decisions I have taken into account the authorities invoked by both parties -in the complainant’s case:

Monaghan VEC v Carroll EDA 0415

Moate Community School v Morarity EDA 0718 / 2007

Gillen v Dept. of Health [2005] 16 ELR 141

 County Louth VEC v Johnson EDA0712

And in the respondent’s case:

Melbury v Valpeters DWT0719

Mitchell v Southern Health Board [2001}E.L.R.201

Meath County Council v McDermott EDA 1312

County Louth VEC v Johnson EDA0712

O’Higgins v UCD[2013}ELR3indb

Board of Management of Scoil Mhuire agus Iosaf Junior School v Pamela Brennan EDA2220

A Teacher v A School ADJ-00018906.

The following 3 cases were cited in the respondent’s concluding submission:

National Advocacy Service v Mary Linehan EDA1619

Waterford Institute of Technology v Kathleen Moore Walsh EDA 042

Grainne Dunne v Inland Fisheries Ireland ADJ-00043699

I acknowledge the invocation of EDA 0718/2007 by the complainant’s representative particularly with respect to surrounding circumstances – although the complaint is based on allegations of discrimination on age grounds the same principle applies with respect to the surrounding circumstances – where the Court commented:

“Evidence of Discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case “.

Accordingly my findings and conclusions will examine the backdrop and history to this complaint with a view to determining the relevance of the evidence advanced from the commencement of the engagement and exchanges between Mr. A and Mr. B and the ensuing exchanges thereafter between Mr. A and the complainant and Mr. A and the successful candidates Mr. B and Ms. A

I have considered the entirety of the evidence from the witnesses and their representatives regarding the Complainant’s earlier assertions that Mr. B was appointed without interview and have concluded on the basis of the oral and documentary evidence (including the Marking/Scoring Sheets) that the complainant was mistaken on this matter and that Mr. B did compete by way of interview for the posts at issue.

The respondent has questioned at length the credibility of the Complainant with respect to alleged inconsistencies in her evidence for example who said what to whom when she joined her colleagues in the car following her meeting with the Principal on the 10th.June – it was submitted that the Complainant was selective in the WhatsApp messages she presented to the WRC in her initial submissions. It has also been contended that her criticism of the school was inconsistent with her evidence that she set out in her letter of the 21st.July 2022 to the Principal in addition to her final text message to the Principal in which she acknowledged that she had worked with a wonderful team of people. Reference was also made to her insistence that Mr. B was never interviewed for the post at issue. I will be taking these matters into account in concluding my deliberations and will also be taking account of the absence of clarity and confusion that featured in the testimony of some of the respondent’s witnesses with respect to the conduct of and marking at interview. I will also consider the belated disclosure regarding the meeting between Mr. B and Mr. A in relation to future job prospects (which took place approx. 2 weeks before the meeting between the complainant and the Principal and Ms. C on the 10th June 2022) – which was not referenced in the respondent’s first submissions and only came to light when Mr. B gave evidence. I will also be taking into consideration some inconsistencies between references in the respondent’s original submission to the exchanges between the claimant and the Principal and the Principal’s record of those discussions – for example references to interviews and open recruitment which are not referenced in the Principal’s records of the meeting.

 Complaint of Discriminatory Treatment  on the Grounds of Age:

 Section 6 of the Employment Equality Act 1998 (as amended) defines age discrimination as:

“6.—(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 in subsection (2) (in this Act referred to as “the discriminatory grounds”), which

(i) exists,

(ii) exists 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

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).”

Section 7 of the Act sets out the requirement on the Complainant to provide a comparator who carries out “like work” in order to ground a complaint of discrimination. A comparator must be employed by the same employer but need not be employed at the same time. In some instances, a hypothetical comparator may be relied upon to demonstrate how a person is treated less favourably than the Complainant.

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of , in this case, age, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell  DEE 011:

 “A Claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

Only if these 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 shift to the respondent to prove that there was no infringement of the principle of equal treatment”.

In her complaint form the Complainant asserted that she was discriminated on the grounds of age when the respondent appointed a candidate (Ms. A) younger than her to a post from a competition held on the 27th August 2022. She submitted that the successful candidate had only been working in the school since Sept 2021 and consequently had less than half the service time at the school than she had. The Complainant described the Complainant as 20 something. She described herself as a 44 year old substitute teacher and gave a detailed account of her teaching experience and qualifications acquired since May 2016. In her original complaint form the Complainant referenced a number of colleagues who had been appointed from the Supplementary Panel in the context of her complaint of discrimination on the grounds of age but clarified in her first submission to the WRC (May 2023) that the supplementary panel appointees were not being advanced as comparators.

The respondent for their part submitted that that the Complainant’s account of her meeting with the Principal Mr. A on the 10th June2022 and the ensuing exchanges with him did not disclose any circumstance that could constitute discrimination on the grounds of age. It was advanced that Mr. B was in the same age bracket as the Complainant and that he had the longest service with the school. It was submitted that Ms. A who was appointed second on the panel – ahead of the Complainant who was third – was in her thirties and closer in age to the complainant. It was advanced that Mr. B who was first on the panel was in the same age bracket as the Complainant and that consequently age did not present any barrier to appointment. It was submitted that all candidates were treated precisely the same way and that there was no evidence of the complainant being treated any differently to other candidates which would indicate discrimination on the grounds of age.

The Principal gave evidence that the last 10 appointments of teachers at the school were from a range of age brackets:

3 were over 50 years of age, 3 were over forty years of age, 3 were over 30 years of age and one appointee was in his/her twenties. It was submitted by the respondent that the forgoing statistics are not indicative of a statistical imbalance in favour of younger candidates.

On the basis of the evidence presented I find the Complainant has failed to present facts of such significance that raise the inference of discrimination on age grounds. Therefore I find that the Complainant has not made out a prima facie case of discrimination on the grounds of age and accordingly I have decided that this element of the complaint is not well founded.

Complaint of Discrimination on the grounds of Religion

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, religion, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell  DEE 011: were set out by the Labour Court in Southern Health Board v Mitchell  DEE 011:

 “A Claimant 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 these 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 shift to the respondent to prove that there was no infringement of the principle of equal treatment.”

In making my decision I have taken into account all of the evidence both written and oral made to me by the parties in addition to the authorities invoked by the parties’ representatives. I am obliged to decide if the Complainant was discriminated against in relation to her application for employment on the grounds of religion by the Respondent.

In her complaint form the Complainant submitted that she was referred to as Ms. C... while teaching but that her married name was Mrs. W... which “is a name of Protestant origin as my husband’s family would have a Church of Ireland background.” The Complainant stated that she expected to be addressed as per her correct name Ms. C... as she registered her name with the Teaching Council and she informed the school accordingly. She submitted that Mr. E – continued to come into the class and call her Mrs. W... even though her photo and name were displayed on the Staff photo board. She also referred to being told by 2 of her teacher colleagues in the staff room “that I would be better off or better suited to working up the road in the local Church of Ireland school in T”. The Complainant asserted that Mr. C and Mr. E made the jokes about tray bakes and the COI school. The Complainant further submitted that she was constantly being asked by staff when her children who attended a COI school – would be making their Communion. She submitted that as a Catholic herself this persistent questioning and mocking of her and which school might better suit her constituted discrimination and victimisation. The Complainant referred to hypocrisy within the school – she referred to the staff WhatsApp group and to inappropriate messages and posts which she described as mocking religion. The Complainant furnished copies of a number of the posts to the WRC.

The respondent denied any discriminatory treatment on the grounds of religion. It was submitted that the Complainant had told the Principal that she changed her name on the substitute list in the hope of being called more quickly by catholic schools. It was submitted that Mr. B – who came first in the interview process is married to a person of Protestant belief and that consequently religion was no barrier to appointment. It was denied that there was any persistent questioning or mocking of the complainant on the grounds of religion. It was denied that any inappropriate messages were posted to the staff WhatsApp site. It was contended that the Complainant participated fully in the WhatsApp group and that she had been selective and misleading in the posts she had furnished to the WRC.

In her complaint form the Complainant stated as follows: “I was told more than once by staff in the staff room in a joking manner that I would be better off or better suited to working up the road in the local Church of Ireland school in T”. In her direct evidence  the Complainant when referring to this incident asserted that Mr. C and Mr. E joked and said in the context of a fundraising event that she should be making tray bakes for the Church of Ireland school in T. Counsel for the respondent referenced the Complainant’s credibility on a number of occasions over the course of the hearings. I note that the Complainant was representing herself up  until mid  2023 – in this regard I am making some allowances for some  inconsistencies on the part of the Complainant in her initial submission to the WRC on the 8th September 2022.

I accept the contention of the respondent’s representative that the Complainant was selective in relation to the posts she furnished to the WRC with respect to her complaints regarding the school WhatsApp group. I further accept the Complainant did participate in this platform and in the course of her time with the school, she did not complain about inappropriate posts.

I have considered the evidence of Mr. C on the matter of the alleged joke about tray bakes. I found the testimony of the Complainant on this matter to be more credible  than that of Mr.C  . I  found Mr.C’s belated  reference attributing  the alleged tray bake comment to the Complainant unconvincing.

 I have considered the evidence of Mr. E on the matter of the alleged joke about tray bakes. I found the testimony of the Complainant on this matter to be more  credible  than that of Mr.E. .

With respect to the allegations that Mr.E addressed the Complainant by her Protestant surname I found the evidence of the Complainant more convincing than that of Mr.E.

 It is however noteworthy that neither Mr. C nor Mr. E were involved in the recruitment process. While I prefer the Complainant’s version of events I find there is insufficient evidence to make out that this treatment of her resulted in her being subjected to discriminatory treatment on the grounds of religion when she submitted for interview in August 2022. Accordingly I find that the Complainant has not made out a prima facie case of discrimination on the grounds of religion.

Consequently, I find this element of the complaint is not well founded.

Complaint of Discrimination on the grounds of Gender.

The Complainant has submitted that she has been discriminated by the respondent on the grounds of gender when she was not appointed as a successful candidate when she was placed third on the panel established from the August 2022 competition. The Complainant submitted that for the purposes of this complaint, Mr. B was her comparator.

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, gender, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell  DEE 011: were set out by the Labour Court in Southern Health Board v Mitchell  DEE 011:

 “A Claimant 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 these 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 shift to the respondent to prove that there was no infringement of the principle of equal treatment”.

As pointed out by the respondent’s counsel and as referenced in the above Employment  Equality Law Text book , the “starting point in any claims of discrimination in terms of interviews at any stage in the employment relationship , including the pre employment phase , it is not the role of the WRC or Labour Court to interfere to such an extent with a competitive interview process to determine the most suitable candidate “(Moore Walsh v Waterford Institute of Technology v Moore-Walsh EDA 042).

In making my decision I have taken into account all of the evidence both written and oral made to me by the parties in addition to the authorities invoked by the parties’ representatives. I am obliged to decide if the Complainant was discriminated against in relation to her application for employment on the grounds of gender by the respondent.

Prima Facie Case

The field of competition comprised 1 male candidate and 3 female candidates. The Complainant, Mr. B and Ms. A were the 3 internal candidates – the 4th.candidate Ms. Dd was an external candidate. The outcome of the Interview Process was that Mr. B was placed first, Ms. A was placed second, the Complainant was placed third and the external candidate Ms. Dd was placed fourth. Both Mr. B and Ms. A were appointed from the panel formed from the competition.

I am satisfied based on the evidence of   Mr. A and Mr. B that the Principal Mr. A met with Mr. B in the days prior to the meeting between the Complainant and Mr. A on the 10th June 2022. I am further satisfied that at the meeting with Mr. B, the Principal indicated that there would be work for Mr. B when the school reopened in September. I note that under cross examination the Complainant was advised by Counsel for the respondent that the Principal would say he did not make appointments prior to the interview process and that he did not speak to Mr. B. This reference to not speaking with Mr. B was contradicted in Mr. B’s direct evidence who set out the exchanges that took place in a meeting he had sought with the Principal to explore future job prospects and clarified his understanding that the Principal would have work for him in September.

I am further satisfied that when the Complainant met Mr. A on the 10th June she was given no indication that there would be work for her in September - this was prior to any advice being sought from the Dept. on whether or not a competition or appointment by designation would apply. I acknowledge that the meeting with the Complainant was formalised by the Principal when he sought the attendance of Ms. C at the meeting. On the basis of the foregoing interactions I find that the Complainant has established the following facts – demonstrating that she was treated less favourably than Mr. B when:

a) the complainant got no indication from the Principal that there would be work for her in September - unlike the experience of Mr. B to whom it was indicated that there would be work;

b) it was suggested to her that she explore alternative employment options in schools such as K school

c) no notes were taken by the Interview Panel and  

d) the meeting was elevated to a formal status by the requirement for Ms. C to attend the meeting at the request of the respondent. This was not consistent with   the pre 10th June meeting between Mr. B and Mr. A where work prospects for the following school year were explored nor was it consistent with the post 10th June meeting between Mr. A and Mr. B and Ms. A where both candidates were advised that the posts would be filled by competition. It is also noteworthy that Mr. B in his evidence stated that the Principal told him at his meeting that he would revert to him before the school finished on future prospects. No such undertaking was given by the Principal to the Complainant.

No Notes

I note that the Interview Board took a decision to refrain from taking notes during the competition interviews. According to Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207

“in addressing discriminatory treatment at interview state the Tribunal or Court will have regard as to whether interview notes were kept and whether a clear objective marking matrix was applied to all candidates. The absence of these factors will generally lead to an inference of discrimination being raised”.

The requirements expected of interview Boards are prescribed in [2005]E.L.R. 141 – Gillen v Dept. of Health where it was determined that

“this court has consistently stressed that interview boards, both internal and external, should be trained and apply strict promotional criteria agreed in advance with adequate markings and should keep comprehensive notes”.

The Independent Assessor when asked who took the decision not to take notes replied this was policy and that she “was happy to go along with it”. When asked who directed how the process worked, the assessor replied “it wasn’t me”. The Independent Assessor said that she was happy that the process was transparent and honest – she said the Board felt they warranted that mark “there were 4 excellent candidates”. The Chairperson said that the policy not to take notes was “agreed by all of us beforehand”.  He said there were 4 candidates and we would manage to remember. The Principal stated that he never took notes at interview and that “we agreed we would not take notes”. He said that it was his personal decision not to take notes and he did not find it challenging when asked about difficulties with recalling the answers given by individual candidates. When asked in hindsight if he ought to have taken notes during the interview process, the Principal replied that there would not have been any advantage to doing so. He said that he saw it as a personal thing – there were a small number of candidates – the time span was 1-2 hours and the interaction with the candidates could be lost if he was focused on writing up notes.

The Principal described the 3 internal candidates as being in “the same bracket” - he said “we felt there was no real difference” – he said there were swings and roundabouts. This was reiterated by the Chairperson in his evidence where he said that when looking at the qualifications each of the candidates were  suitable and competent  for the job. Ms. D described the applicants “as four excellent   candidates”.

In light of the foregoing it is difficult to find the respondents justification for their decision not to take notes as convincing. The respondent’s submissions and marking papers indicate that one mark made a difference in the final rank order of candidates – I consider this should be all the more reason that notes should have been taken so that there would be some record of the basis upon which marks were awarded when the competition was so tight. The concern of the Principal regarding interaction with the candidates could have been resolved by having another panel member take notes while he was interviewing. I find that the Panels explanation for failing to take notes in circumstances where there was little separating the candidates (according to all 3 panel members) - was not convincing.

Based on the foregoing factors as well as the chronology of events in and around the 10th June 2022 I am satisfied that the Complainant has presented sufficient facts from which discrimination on the grounds of gender may be inferred. I am satisfied that the evidence indicates that the Principal was more positively disposed towards Mr. B. from the outset. Having determined that the Complainant has presented a prima facie case of discriminatory treatment, I must now look behind the interview process and assess if the respondent has discharged the probative burden it now bears.

The Interview Process:

I accept as submitted by the respondent’s Counsel and supported by the authorities invoked by her that it is not the role of the WRC  or Labour Court to interfere to such an extent with a competitive interview process to determine the most suitable candidate – (EDA042 Waterford Institute of Technology v Moore-Walsh) – rather the role of the WRC or the Labour Court under the Employment Equality Acts is to examine whether there were any discriminatory elements in the interview process…”.” In Bolger, Bruton and Kimber( Employment Equality Law 2nd.Ed. 2022.at par 10-20.) the role of the WRC/Labour  Court is described as   ensuring  that the selection process is not tainted by unlawful discrimination and the relevant competencies are tested” .I note that while the parties remained in dispute as to whether the Complainant or Mr. B were longer experienced or better qualified , the evidence of all 3 members of the panel was that the competitors were of high calibre .The respondent insisted that Mr. B had longer service than the claimant while the complainant’s representative maintained that the complainant had longer service when her appointments were aggregated. In his own evidence the Principal advised that Mr. B had longer service in the school but the difference between Mr. B and the complainant   was marginal. A post hearing submission from the respondent indicates that Mr. B had longer service with the school while on aggregate the Complainant had longer overall service in a number of schools by a narrow margin and Ms. A had the longest service of all 3 candidates.  A difference of opinion also arose in the context of qualifications where the complainant’s representative contended that the complainant’s qualifications were superior to that of Mr. B while the respondent submitted that Mr. B had a higher level (9) teaching qualification than the complainant (8).

In Johnson EDA0712 (referenced by both representatives) the Complainant alleged that he had been discriminated against on the grounds of age when he was not appointed to the position of assistant principal and a younger less experienced candidate was appointed. The Labour Court expressed approval of a number of factors which were put in place by the respondent for its interview process.

The interview and selection procedure were fully in compliance with the relevant Dept. of Education and Science Circular:

I find the respondent was in breach of circular 0044/2019 in failing to notify the candidates of the details of the “established criteria for the post” and no convincing argument was advanced to excuse this failure. It was not disputed that the claimant was appointed by designation with respect to the other previous appointments she had applied for - that had been made by the respondent school. Consequently, the respondent’s argument that the claimant would have seen the criteria previously is not persuasive and does not excuse their failures in this regard.

No explanation was offered by the respondent for the failure to furnish the candidates with the established criteria other than “it was not common practise”. While I acknowledge that the respondent submitted that all candidates were equally disadvantaged by this failure, the absence of any compelling explanation for failure to comply with 0044/2019 is symptomatic of what appears to be a casual observance of procedures by the respondent.

Paragraph 13.7 of circular 0044/2019 “Recruitment and Appointment Procedures for Teachers” requires that

“Each member of the Interview Board is required to complete his or her own individual marking sheet for each applicant and give it to the Chairperson of the Interview Board on completion of the interviews.”

On the basis of the evidence of the Panel members, this provision does not appear to have been   observed when collectively they chose to award blanket marks to the 3 internal candidates for the following 2 X criteria.

“Suitability of Qualification and Teaching Experience and Professional Competence and satisfactory reference”.

I find no cogent explanation was advanced for this approach.  While Mr. A asserted that the complainant got recognition for her first class honours and the successful candidate got recognition for his Masters there was no explanation proffered for how this was done in circumstances where there was no distinction drawn between the merits of the respective candidate in the marks awarded for the forementioned criteria. Similarly, the Panel members were unable to clarify why a distinction was made with respect to the 4th placed candidate (Ms.Dd) with respect to the criteria “Suitability of Qualification and Teaching Experience”.

On the basis of the documentation presented by the respondent and the evidence of the Panel Members global marks were awarded to the candidates prior to interview which was based on their CV/Application forms (Ms. D “Competency in Teaching was based on the application form – the witness said the Complainant scored 20 marks as did everyone else”). When questioned and challenged by Counsel for the Complainant on the rationale and fairness of this approach, Ms. D said” suitability was taken into account”. When asked why there was no distinction drawn between the relative experience of the candidates Ms. D responded “they were 4 excellent candidates and we decided together they warranted 20 marks”. The witness said she based her assessment on professional competence. She was unable to clarify how a comparative assessment was undertaken – i.e.  analysing the merits of the range of qualifications and teaching experience and professional competence and satisfactory references in circumstances where a blanket mark was collectively agreed for all 3 internal candidates who presented with a range of different backgrounds and experience. Ms. D referenced the focus of the panel being on professional qualifications re. teaching and education. She said that competency in teaching was based on the application form – she said the Complainant scored 20 marks as did everyone else. She did not clarify the make up of the blanket score of 20 marks  for the objective criteria of  “Suitability of Qualification and Teaching Experience “   and  “Professional competence and satisfactory reference “. The witness did not clarify why there was no distinction drawn between the 3 internal  candidates with respect to the first 2 objective criteria on the marking sheet. It  is noteworthy that objective criteria can be more transparently measured than the  subjective criteria set out on the marking sheets.

Mr. D the Chairperson of the Board did not recall who decided on what the criteria would be – he said “we gave each person the fairest opportunity”. When asked to explain the rationale for the scores – with Counsel for the Complainant contending that the Complainant having better qualifications and longer teaching experience than Mr. B and why she did not get any additional credit, Mr. D responded that they felt all were competent and suitable and they marked as fairly as possible. When asked to explain why less marks for Criteria 1 “Suitability of Qualification and Teaching Experience” were awarded to the external candidate (15) marks as opposed to the internal candidates (16) marks, the witness was unable to offer any clarification. It was put to the witness that the Panel were able to differentiate in marking when it came to the external candidate but were not able/ willing to do so when it came to the Complainant. The witness could not recall why Ms. A (second placed candidate) got the same score under this category as the Complainant. The witness was unable to explain the rationale for equalising the marks for the objective criteria across all 3 internal candidates.

The Principal described all 3 candidates as being in the same bracket with very little between them - that there were swings and roundabouts and their experience was similar. At the same time, when challenged by the Complainant’s counsel, Mr. A submitted that the successful candidate Mr. B had longer service than the Complainant with the school. The Complainant qualified 2 years earlier than Mr. B – it would appear that the view was held that service with the respondent school  was valued more than  service in the wider education sector. Additionally, the Principal submitted that Mr. B had a higher qualification level 9 than the Complainant (level 8). The Principal submitted that the second placed candidate had longer service than either Mr. B or the Complainant. The Principal did not explain why if Mr. B was deemed to have more valuable qualifications – a level 9 - than the Complainant – he was not scored accordingly on the marking sheets.

While I acknowledge it is the prerogative of the Panel to decide upon the merits of the candidates in terms of selection, the rationale for this universal figure being applied to the 3 internal candidates – all of whom came to the table with differing ranges of qualifications and experience remains unexplained.

In their final submission to the WRC, the respondent asserted that there was no discussion about the candidates prior to the interview. On the basis of the evidence of the Panel Members, it remains unclear when the decision on the blanket marking for Criteria 1 and Criteria 2 was taken or indeed applied.

The procedures were clear and transparent; I find that this requirement was not met when the Panel failed to keep notes and when the Panel did not provide any documentary evidence of a clear objective marking matrix.

The members of the Interview Board were independent of the employer, had extensive experience and were trained in the requirements of anti-discrimination law  - in this case the members of the interview Panel were not independent of the employer with the exception of Ms. M – the independent assessor. I accept that it would be the norm in the public sector that panels include employer nominees in addition to independent assessors.

A Pre-interview meeting was held at which the panel drew up questions relating to key areas: The confusing testimony of panel members did not provide confirmation of compliance with this provision.

Marks were allocated for critical attributes required for the duties of the position based on objective predetermined criteria. No supporting evidence was presented to confirm compliance with this provision.

In his evidence Mr. A advised that the interview process complied with IPPN guidelines. The IPPN guidelines reference on page 4 “Selection Board will link questions to the criteria and establish a structure for interview. Refer to Guide to Conducting an Interview”. The undersigned sought a copy of this Guide and asked the respondent to “clarify/confirm that the interview panel used a Guide “and requested to be furnished with a copy of the Guide that was in place at the time of the interviews in August 2022. The respondent replied as follows on the 8th July 2025:

“I am instructed that the interview panel did not use the Guide to Conducting an Interview referred to at page 4 of the IPPN Resource Bundle.

The IPPN Criteria and Marking Scheme was introduced at the hearing and were used but the respondent otherwise relies on Circular 44/2019 attached ….”

In light of the foregoing response, I consider it reasonable to infer that the school did not use any Guide to Conducting an Interview in this competition. From the outset the respondent has asserted that the 4 candidates were interviewed in accordance with IPPN guidelines – the evidence set out above is inconsistent with this assertion.

Openness and transparency are requirements of the appointments process – the evidence of the Panel Members indicates that the process was neither open nor transparent. The Panel Members did not offer any breakdown of the manner in which differing range of competencies across the 5 criteria were marked – no evidence was proffered in relation to how the 20 marks for each of the 5 criteria was divided between the competencies – for example what percentage of the allocated 20  marks went to the 3 competencies set out in Criteria 5 – Presentation /Communication/Performance at interview.

Further evidence of this absence of clarity arises in the context of the marks awarded by the individual Panel Members.

The evidence of all 3 Panel Members was very positive about the calibre of the  4 candidates.

The Principal repeatedly submitted that he awarded the Complainant more marks than the successful candidate Mr. B – suggesting that this corroborated his denial of any negative disposition towards the Complainant.  Based on the marking sheets submitted into evidence, the Principal – who in evidence submitted that he was the referee for all 3 internal candidates - awarded both the second placed candidate and the Complainant a total of 89 marks. He awarded the first placed candidate  candidate 88 marks.

The Assessor awarded the first place candidate 89 marks. She awarded Ms. A (second placed candidate 86 marks) and the Complainant 86 marks.

Mr. D awarded Mr. B a total of 93 marks. He awarded the second placed candidate 86 marks and the Complainant and the external candidate 83 marks each.

Subjective Criteria:

In the Complainant’s scoresheet Mr. D awarded the Complainant 14 marks for Criteria 5 -Presentation, Communication and Performance at interview – this was the lowest score of all candidates  for this category/competency and significantly lower than the score of 19 for the first placed male candidate. This combined with a score of 15 for “knowledge of the revised curriculum, classroom management, methodologies and professional development” (Criteria 4) precluded any prospect of the Complainant being placed first or second on the panel. This marking was inconsistent with the evidence from this panel member of all four candidates being suitable and competent. The Principal has at all times reiterated his regard for the Complainant as a teacher.  While it is acknowledged that the respondent’s submissions attributed poor performance at interview to the Complainant’s lack of success, at no point in the proceedings did any of the panel members particularise shortcomings in these competencies or in interview performance by the Complainant. No clarity regarding the answers proffered by claimant vis a vis those offered by Mr. B was forthcoming.  It appears that Mr. D took a negative view of the Complainant’s performance with respect to these criteria but when giving evidence he did not articulate or explain the basis for awarding the complainant the lowest mark a combined total of 29 marks for the 4th and 5th  (subjective )criteria on the marking sheet and awarding Mr. B a combined total of 38 marks for the same (subjective )criteria. I acknowledge that at the time of this competition, the Chairperson had suffered a close personal bereavement and acknowledge his indication when he gave evidence that this may have affected his recollection of events.

In the case of panel member  Mr.A , there was a difference of 1 mark – in the Complainant’s favour- between marks awarded to the Complainant and marks awarded to Mr.B

In the case of panel member  Ms.D , there was a difference of 3 marks – in Mr.B’s favour- between marks awarded to the Complainant and Mr.B .

In the case of panel member Mr.D there was a difference of 10 marks -in Mr.B’s favour – between the aggregated marks awarded to the complainant and Mr.B. No cogent evidence was advanced to justify this significant difference in  marking between the Complainant and Mr.B.

I believe  the principles applying to the instant case have been considered by the Labour Court  in the South Eastern Health Board v Brigid Burke (EDA041) where the Labour Court found that there was an inference of discrimination and the respondent failed to prove that no infringement of equal treatment had taken place  ….the Court found that the respondent failed to give a reasonable explanation for the generous marks awarded to the successful male candidate in comparison to the female complainant and found that the Interview  Panel failed to keeps notes .The following further parallels to the within case are noteworthy :

 “ Having carefully assessed the respondents evidence, the Court finds that the respondent did not give a reasonable explanation for the remarkably generous marks awarded to the successful candidate for experience in situations very different to the requirements as specified in the advertisement, and in comparison to the marks awarded to the complainant for her experience in the job itself on an acting basis which approximated more closely to the requirement of the job as advertised.

Both candidates were awarded similar marks for educational qualification, despite the fact that the male candidate was awarded 5 marks for his RPN qualification, which was not an essential or desirable qualification, and the female candidate was not awarded any marks for her third level qualification in Gerontology (Certificate in Psychosocial Nursing Care of the Older Adult).

When commenting on the subject of the core competencies and specific competencies necessary for the position, the Equality Officer stated:

“The respondent could be criticised for having failed to operate open and fair procedures in relation to this competition as there was no breakdown of these marks which represented in excess of 70% of the markings to be awarded under the various criteria and this should be done in advance of applications being received for the competition”.

A maximum of 900 marks - 82% - were allocated for “Knowledge/Professional Knowledge, Core Competencies, and Special Competencies”. In the circumstances, the Court would have expected the respondent to be in a position to give a credible explanation for the marks awarded under these headings beyond a mere statement that they represented the subjective assessment of the interview board and “were granted on the basis of competence evidenced through candidates’ responses to questions”.

This Court has consistently commented on the need for Employers conducting interviews to have openness and transparency in their selection process. See in Particular Gleeson V the Rotunda Hospital DEE 00/3. Where in a case such as this the

interview committee met in advance, looked at the two Curriculum Vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. In this case, the respondent has not discharged that onus”.

The comments of the Equality Officer  are especially noteworthy.

In reviewing these scores I am endeavouring to determine whether a reasonable interview panel, acting properly and having no regard to gender, could come to the decision it did. While the respondent has made sweeping generalities about their reliance on “performance at interview” no plausible explanation has been offered for the claimant receiving 14 out of 20 marks in the criteria – Presentation , communication and performance at interview -  by one of the panel members while the same panel member awarded 19 out of 20 marks to the only male candidate. This criteria bracket referenced 3 specific competencies “Presentation, Communication and Performance at Interview “No explanation was offered as to how the 20 marks were allocated to each competency and to each candidate in this subjective section.

 It is noteworthy that all panel members referred to the candidates in very positive terms – “4 excellent candidates “(independent Assessor), “no real difference between them” (Mr. A) and “suitably qualified and professionally competent” (Mr. D). In their evidence the panel members offered no evidence to explain why this was not reflected in the marks awarded. There was no specific ,observations or commentary offered by the Panel Members – who were questioned at length by the Complainant’s Counsel . No evidence about the  claimant’s performance at interview, her demeanour, her presentation or indeed her answers at interview was proffered. The Board did not particularise any performance deficits other than a sweeping generalisation about “better performance” on the part of the successful candidates. The evidence of the Interview Panel was inconsistent – numerous references were made to superior qualifications and longer experience on the part of Mr. B but there was no evidence that this was credited in the marking system. The testimony of the panel members lacked clarity and consistency. No cogent explanation was offered for the significant difference in marking between the complainant and the successful male candidate by one of the panel members.

Additionally, I am taking account of   the reference in EDA0715 to the following on burden of proof

“since the facts necessary to prove an explanation can only be in the possession of the respondent, the Court should expect cogent evidence to discharge the burden of proof”. This decision also references “the requirement to establish that there was no discrimination whatsoever means that the Court must always 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.”

Three  female candidates competed in this competition and the sole male candidate came first in the competition.No cogent explanation was advanced for the significant  difference in the scoring by one  panel member of the complainant and the successful male candidate- notwithstanding the panel’s description of the 4  candidates  as” high calibre , suitable and competent , excellent and in the same bracket”.

Given the inconsistent scoring by Panel members without explanation , the absence of a clear objective marking matrix combined with a lack of clarity around the entire recruitment process along with  the evidence of a predisposition in favour of the male candidate by Mr.A  I consider it reasonable to infer that the selection process was tainted by discrimination and that the claimant was discriminated against on the grounds of gender. On the basis of the evidence presented by the respondent I find the respondent’s evidence has failed to meet the probative burden arising from the prima facie case established by the claimant.

Accordingly I find on the balance of probability that the Complainant was discriminated against by the respondent on gender grounds when she submitted for competition for a post on the 27th August 2022. Consequently I am upholding this element of the complaint. I believe my investigation is consistent with the principles set out in EDA 1515 which is similar to this case (while acknowledging that in the instant case the matter of better qualifications and experience was disputed by the parties throughout the investigation) and wherein the Court determined as follows:

“In considering if the Respondent has discharged the probative burden that it bears the Court has carefully evaluated the evidence tendered on how the impugned decision was reached. The notes taken by individual members of the Selection Panel were not retained and given the lapse of time since the events giving rise to this claim the recollection of those who gave evidence was understandably impaired. Even taking account of these considerations the testimony proffered to the Court by the members of the Selection panel on the reasons for their decision was couched in vague and general terms and the Court found it unconvincing. In particular no cogent explanation was provided as to why the successful candidate was preferred over the Complainant, who in overall terms, was clearly better qualified both in terms of her experience and her academic attainment……”

I am satisfied that my conclusions are consistent with the findings and principles set out in EDA0415 (previously invoked by the Complainant’s Representative where transparency in marking was examined in detail):-

This matter of weighting of marks was considered at length by the Labour Court in EDA0415 in Monaghan VEC & Carroll  where the complaint related to discrimination on the grounds of age - – the Court found weighting of marks in favour of younger candidates with conflicting  accounts of the scoring methodology used by the Selection Board .The Court took the view that the process was not conducted with appropriate formality and that the scoring of qualifications and experience lacked a structure and transparency. It was found that no satisfactory explanation was given for the reason why the complainant scored 14 points less than the maximum available on a particular criteria. Ultimately the Court determined that the explanations given by the respondent did not rebut the inference of discrimination and the Complainant’s position was upheld.

I find that the complainant was subject to discriminatory treatment on the grounds of gender and accordingly I find the complaint to be well founded.

I require the respondent to review their recruitment procedures with a view to giving effect to the requirement to have “openness and transparency in the process of appointment to posts from monies provided by the Oireachtas” as set out in Chapter 2 of Circular 0044/2019. I also require the respondent to ensure that interview notes are kept and retained for all further recruitment by the school.

In the within case, I find that the appropriate form of redress for the effects of the discrimination is compensation. I have taken account of the award made in EDA 1515 (€54,000) referred to above and EDA041 (€45,000) where the Court found that the respondent failed to prove that no infringement of equal treatment had taken place.   I have also taken into account the claimant’s aspiration for a Contract of Indefinite Duration and have taken into consideration the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” Von Colson CJEU C14/83.

In accordance with Section 82 of the Act, I order the respondent to pay the complainant compensation of €42,484.65. This award – (equivalent to 9 months’ pay) constitutes redress for the infringement of the complainant’s statutory rights  and therefore is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

Discrimination on grounds of Age, Religion & Gender