SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
MINISTER FOR EDUCATION AND SCIENCE AND THE DEPARTMENT OF EDUCATION AND SCIENCE
(REPRESENTED BY THE OFFICE OF THE CHIEF STATE SOLICITOR)
- AND -
MS CLAIRE BRESLIN
(REPRESENTED BY O'MARA GERAGHTY MCCOURT)
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Equality Officer's Recommendation EE14/2000.
2. The dispute concerns a claim by Ms. Claire Breslin that the Department of Education and Science and the Minister for Education and Science discriminated against her on the grounds of her sex in terms of Section 2 of the Employment Equality Act, 1977 and in contravention of Section 3 of the Act in relation to promotion.
Ms. Breslin is employed as a District Inspector in the Department of Education and Science. In May/June 1997 she was interviewed for promotion to the post of Divisional Inspector. She was placed 13th on a panel of 15 which was established by the interview board. Ten people, nine males and one female, were promoted over the lifetime of the panel. A total of 33 male and 3 female candidates had applied for the position.
The dispute was investigated by an Equality Officer who issued his recommendation on the 6th of April, 2000. He found that neither the Minister for Education and Science nor the Department of Education and Science had discriminated against the claimant contrary to the provisions of the Employment Equality Act, 1977. The claimant appealed the recommendation to the Labour Court on the 2nd of May, 2000 in accordance with Section 21 of the Employment Equality Act, 1977, on the following grounds:-
1. The Equality Officer erred in law and in fact in finding that the Respondents and each of them did not discriminate against the Claimant/Appellant contrary to the provisions of the Employment Equality Act, 1977;
2. The Equality Officer erred in law and in fact in not awarding an appropriate remedy to the Claimant/Appellant for the discrimination experienced by her and the consequent distress to her;
3. On all grounds submitted during the Equality Officer's investigation and such grounds as may arise during the course of this Appeal.
The Court heard the appeal on the 5th of December, 2000. Both parties made written and oral submissions to the Court. The following is the Court's Determination:-
The Court has given consideration to all aspects of this case. The appellant's case is that the respondents discriminated against her on the grounds of her sex within the meaning of Section 2 (a) of the Act, and in contravention of Section 3 of the Act because, as a result of her sex, she was not appointed to the post of District Inspector.
The grounds of appeal advanced on behalf of the appellant are as follows:
1. She was (a) better qualified and (b) more experienced than five successful male candidates for the positions.
2. Female candidates as a group were very much more qualified than male candidates and were under represented at this level.
3. Certain questions asked at interview were discriminatory and the omission of questions relating to her personal professional achievements was discriminatory.
4. The competition was lacking in openness and transparency.
5. One member of the interview board was influenced by their social relationship with one of the successful male candidates.
The appellant states that these five factors constitute prima facie evidence of discrimination.
1 (a) Qualifications
The appellant states that she undertook postgraduate study in the foundation disciplines of education and also completed a course in Management and in Educational Statistics as a Special Elective for which she obtained first place in her class and that she completed a thesis directly relevant to the task of Whole School Education, all of which work was of central relevance to the work of the Inspectorate. The respondents stated that academic qualifications were not used to assess candidates’ suitability for promotion to District Inspector Grade. Accordingly, academic qualifications were not stipulated in the Job Description or in the Criteria For Selection. The only qualification necessary to apply for the competition was to be a primary inspector with not less than three years' experience in the recruitment grade. The course of studies undertaken by the appellant may be of relevance and of value to the promotional posts in question; however, the Court accepts that the respondents were not seeking a person with such specific qualifications and, therefore, no inference of gender discrimination can be drawn from this fact. Attainment of further qualifications was not among the criteria applied in the process of selection.
There is further evidence from the sample of assessment forms which were supplied to the Court that all of those for whom forms were supplied were classified as “well qualified”.
The Court was referred to Northern Ireland case ofWallace v South Eastern Education and Library Board (1980) N.I. 30.This case is the authority for the proposition that once a prima facie case of discrimination has been made then the onus shifts to the respondents to justify their decision. A similar situation arose in a second case referred to by counsel for the appellant, The Rotunda Hospital v Dr. Noreen Gleeson DEE003 (2000). In those cases, however, additional qualifications were deemed to be part of the criteria for selection. In this case they were not. Once each candidate had the minimum criteria, then additional qualifications were not taken into consideration.
As the only qualification necessary was to be a primary inspector with not less than three years' experience, the Court accepts that no weighting was given to candidates' other qualifications at the interview. The Court, therefore, finds that the appellant was not discriminated against on this ground.
1 (b) Experience
The Criteria for Selection included:
Extent and depth of knowledge of current educational developments, especially as they apply to the work of the inspectorate / psychological service.
The Court accepts that the appellant has an extensive knowledge of current educational developments and that the course and postgraduate work she undertook and referred to in 1(a) showed her depth of knowledge of current educational developments. However, the respondents contend that each of the other candidates had a wide range of valuable experience, albeit different from that of the appellant, which entitled the Board to consider that their depth of knowledge of current educational developments was at least equal to that of the appellant's. In the absence of any prima facie case of discrimination it is not the function of this Court to substitute it's reasoning for that of the Board.
A reference was made to age and years of service as a District Inspector of each of the successful male candidates. The Court has been furnished with details of the age and service of each of the successful candidates; four are older than the appellant and the two candidates placed below the appellant had greater length of service. The Court can find no evidence of discrimination in this regard. The respondent refers to the placing of a female candidate above the appellant on the panel. This candidate had similar years of service and, therefore, the Court accepts that candidates' years of service did not militate against her placement.
2. Under Representation of Women
The applicant advances the proposition that females are underrepresented in the relevant Departmental grade. Details of the number of males and females who applied for the Primary District Inspector grades in 1997 and in 2000 were supplied to the Court. The figures presented indicate that since 1997 the number of applicants by sex selected for promotion is proportionate to the number of the applicants applying. In the 1997 competition, in respect of which the appellant brings this appeal, out of the 11 eligible female inspectors, only three chose to apply, of which two were placed on the panel (including the applicant).
The Court accepts that there has been under representation of women in the past, however, in the competition complained of and in subsequent competitions females have been successful in obtaining appointments in proportion to the number applying.
The Court is satisfied that the allegation of discrimination is not substantiated on this basis.
The appellant also contends that female applicants in general were more qualified than the male applicants and the failure of the Board to take this into account when setting the criteria for selection amounted to indirect discrimination. The Court cannot accept this contention. The criteria were set according to the needs of the Department. The criteria were not discriminatory and the fact that the Board did not take account of the fact that some applicants might have additional qualifications could not be held to be discriminatory.
3. The Interview
The appellant states that the Interview Board explored neither her personal professional expertise nor her “personal qualities”. She was of the opinion that she was not given the opportunity to expand on her experience and responsibilities in certain areas. She stated that she was upset at the conduct of one member of the Interview Board. The Court takes the view that the Interview Board could have done more to guide the candidate at this point, however, the Court is satisfied that this does not of itself infer that she was discriminated against on gender grounds. There was an onus on the appellant to use her time wisely at the interview, to ensure that all opportunities were availed of and to accept the importance of the interview for achieving success.
The respondents contend that the appellant's interview performance justified her position on the panel as she had displayed some difficulty in focusing on the questions asked within a reasonable time frame. The Court accepts this as a plausible contention.
The appellant made an allegation of discrimination in relation to questions that were asked of her at the interview concerning her work in the area of Gender Equality. These questions related to the appellant's particular area of expertise. The Court accepts the respondent's contention was that such questions were not discriminatoryviz a vizsimilar questions which could be put to a male applicant but were asked to elicit information in an area in which the applicant was well versed.
The Court notes that at the “feedback” interview, which was held following the results of the competition, between the appellant and the Chief Inspector, no allegations of discrimination on gender grounds were made. At that feedback session, the appellant was advised that during the interview she could have ranged over a greater number of areas.
It is not the responsibility of the Court to decide who is the most suitable candidate for a position. The function of the Court is to determine whether the gender of the complainant or of the successful candidates influenced the decision of the Board. The Court, therefore, cannot conclude on the basis of these facts that the appellant was discriminated against at the interview stage.
4. Openness and Transparency
Criteria For Selection
Counsel for the appellant held that the competition was completely lacking in openness and transparency and that the selection criteria were not used in a meaningful way.
Senior management in the Department of Education and Science in consultation with the Chief Inspector drew up the criteria for selection prior to the holding of the competition. Independent advice was taken to ensure gender fairness. As these were promotional posts, no academic qualifications were specified, as is the norm in the Department. The Court has been furnished with the Criteria For Selection, which the Board sent to all applicants. The Court accepts that the criteria used in the selection process were not discriminatory.
Counsel for the appellant referred to the case of Co. Laois V.E.C. v Ms. Mary Higgins (1997) DEE3 where it was found that the Interview Board had no pre-determined selection criteria to ensure an objective and even handed assessment. The Court is satisfied that the respondents in this case had in place Criteria For Selection which had been sent to all the applicants.
The Court was also referred to the case of Oola National School v Nix EE05/1997, where it was found that the interview board did not comply with the guidelines for the board in regard to the procedures for selecting teaching staff. In this case, the Court is satisfied that the guidelines were adhered to.
The Court has consistently taken the view that to reach a decision as to whether or not discrimination has occurred, the notes and records of an interview board are of considerable assistance. It is a matter of regret that markings and weightings were not attached to the individual criteria at the selection stage of the process. Such an omission could in certain cases allow interview boards to act in a subjective manner, if they were so inclined. The Court however takes the view that a lack of notes and records unsupported by corroborating evidence may not of itself lead to a prima facie finding of discrimination. In this case such corroborating evidence is lacking.
The Court notes that since this competition a new regime has been put in place whereby formal notes are taken by a note taker at interviews.
At the Court hearing, the respondents indicated that the ranking of candidates was carried out by means of a formal procedure. Prior to the assessment process it was decided that certain members of the board would concentrate on specific aspects of the criteria for selection and make their selection based on these attributes. In terms of how candidates were ranked the Board stressed that in view of the almost uniform excellence of the candidates one of the main factors was the performance of each candidate at interview.
The respondents pointed out that the difference in ranking between candidates was minuscule. The first five selected were by the unanimous decision of the Board, the next five were selected following examination and discussion and finally the remaining five were selected after further deliberations. The Court accepts that the Interview Board carefully deliberated when assessing the position each successful candidate should have on the panel.
It is a fact that the appellant was successful in being placed on the panel. At the time of the interview, there were five vacant positions available for immediate posting; five further positions became available in the following three months. As no further positions became available in the following nine months, the panel was deemed to have expired in accordance with normal placement procedures within government departments and, therefore, the appellant was unsuccessful in attaining a position as a District Inspector during the lifetime of the panel.
The Court cannot accept the appellant's contention that the entire process for selection was lacking in openness and transparency.
5. Social Relationships
It was alleged that the Chairman of the Interview Board knew, socially, one of the successful applicants. The Court is being asked to accept that this of itself could discriminate against the appellant. The Court cannot accept that this fact even if true , of itself constituted discrimination against the candidate on the grounds of her sex.
The Court accepts that the claimant in this case has demonstrated her commitment and professionalism over a long number of years. It fully appreciates her disappointment at not being appointed to one of the posts for which she applied. However, given the restricted number of posts available and the number of qualified candidates, the result of the competition could not be seen as an adverse reflection on her.
The Court accepts that the Department of Education and Science made the appointments, which gave rise to this dispute, in the proper manner as prescribed. In the absence of prima facie evidence of discrimination in the selection process (of which there is no evidence in this case) the Court should not interfere with the eventual outcome of that process.
On the evidence, the Court is satisfied that the placement of the appellant on the panel was not conducted in an unlawful discriminatory way. The Court is also satisfied that the respondent's explanation that the claimant's performance at interview determined her placement on the panel, is reasonable. It is obvious to the Court that the appellant is exceptionally well qualified, however, her performance at interview did not allow her abilities to be projected in the best possible light.
Having considered all of the evidence before it, the Court upholds the Equality Officer's findings that the Department of Education and Science did not discriminate against Ms. Claire Breslin in terms of Section 2(a) of the Employment Equality Act, 1977, or in contravention of Section 3 of that Act, when the Employer placed her on the thirteenth place on the panel and placed five male candidates ahead of her.
Signed on behalf of the Labour Court
6th March, 2001______________________
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.