SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
DEPARTMENT OF EDUCATION AND SCIENCE (THE BOARD OF MANAGEMENT ST. BAITHIN'S N.S & THE BOARD OF MANAGEMENT ST. AENGUS N.S)
- AND -
MS MARIAN SHEILS O'DONNELL
(REPRESENTED BY I.N.T.O)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal against Equality Officer's Recommendation Dec - E - 2001/008.
2. The claimant was one of two candidates interviewed for the post of Home School Community Liaison Co-ordinator on the 11th of October, 1999. She was the unsuccessful candidate. She claims she was discriminated against on grounds of her sex. The employer rejects the claim.
The dispute was referred to an Equality Officer for investigation. The Equality Officer issued her recommendation on the 9th of February, 2000. She found that the employer did not discriminate against the claimant within the meaning of Section 2(a) and Section 3(1) of the Employment Equality Act, 1977.
The Union appealed the Equality Officer's recommendation on the 22nd of March, 2001. The Court heard the appeal on the 17th of May, 2002.
This is an appeal to the Court from a decision of an Equality Officer pursuant to the provisions of Section 2(a) and 3(1) of the Employment Equality Act, 1977, (the Act) and the European Equal Treatment Directive (76/207 EEC).
The appellant in this case claimed that she was discriminated against by her employer in that during her interview for the post of Home School Community Liaison (HSCL) Co-ordinator she was asked questions which would not have been asked of a male candidate and a less suitably qualified and experienced male candidate was appointed to the position.
Separately, the appellant claims that the Department of Education and Science was her joint employer in this case.
The Court has considered the question of who is the employer in this case. The appellant states that it is the Department of Education and Science, while Counsel for the respondents states that the boards of Management of St. Baithin's National School and St. Aengus National School are the employer.
Both parties to the hearing have cited many cases to support their contention in this regard, and the Court has carefully considered these cases.
Having carefully considered the cases cited, the Court proposes to follow the decision of the Employment Appeals Tribunal in the case ofCecelia Mc Govern v Department of Education UD554/1989. In that case, the Employment Appeals Tribunal concluded that the claimant had a three-headed employer; the Board of Management, the Minister for Education and the Department of Education. The Board of Management made the appointment but all appointments were subject to the Minister/Department's Rules of National Schools and the Department decided on the duties of the National Teacher and also decided on the description to be put on the appointment. It was held, inter alia, that the teacher was employed by the Board of Management, as an agent for the Minister for Education. The Department has an overall supervisory function and the ultimate say in the appointment of the teacher.
The Court is of the view that this finding of the Employment Appeals Tribunal is consistent with the Board of Management "Constitution of Boards and Rules of Procedure"which states under the heading "The Appointment of Teachers"
"All appointment as teachers in the school shall be made by the Board of Management in accordance with the Rules for National Schools and subject to the prior approval of the Patron and of the Minister for Education."
Additionally, the Education Act, 1998 states under Section 15(2), "a board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall-
(a) do so in accordance with the policies determined by the Minister from time to time."
Section 24 (2) and (3) refers to the appointment of staff subject to the approval of the Minister.
The Court is satisfied that the Department of Education and Science, together with the Boards of Management of St. Baithin's National School and St. Aengus National School are the employer.
The Appellant's case
The appellant complains that the reason she was unsuccessful in her application for the position of Home School Community Liaison Co-ordinator was due to the manner in which she was interviewed for the post, in that by asking a question in respect of her family life she was discriminated against on the grounds of sex by the respondents.
The complaint was investigated by the Equality Officer who found that the Respondents had not discriminated against the claimant. It is against that finding the claimant appealed to this Court.
The background to the dispute and the detailed submissions of the parties are adequately recited in the report of the Equality Officer. For the purpose of this determination they can be summarised as follows;-
In substance, it is alleged that in the course of being questioned at the interview in relation to the requirement for flexibility in the hours of work for the post she was asked a question about her family responsibilities. The Respondents stated that the one other applicant, a male, was also asked this question. It is claimed the as women have traditionally looked after children, therefore the impact of this question was greater on her than that on the male applicant. The claimant contends that, therefore, this was discriminatory and indicated a negative disposition towards her, based on her gender.
The claimant citedChaney v University College Dublin(EE 15/1983) where the claimant alleged that the prospective employer had refused her access to employment because she was married and had children. She maintained that she has been asked at the interview how many children she had and how she proposed to have them cared for. Apparently these questions had not been asked of the male candidates.
It is accepted by the respondents that the interview panel did not adhere to the Department's guidelines on the conduct of interviews, in that they did not keep notes during the interview. The point was made that this was in part due to there being only two candidates, interviewed in succession, with a decision made immediately afterwards. Two sets of notes were subsequently made available to the Equality Officer. While this failure on the part of the interview panel is not discriminatory, it can make it more difficult later to confirm transparency and objectivity, and is regrettable.
It does appear from the limited notes available that the appointee was considered to be better placed than the claimant in the areas of relevant "experience" and "qualities" which, together with qualifications, were selected in advance by the panel as the three criteria to be used in selection.
It is accepted by both parties that the claimant was the more qualified academically, but the importance of the different qualifications for this non-teaching post is disputed. Both candidates had 22 years' teaching experience.
The panel comprising the two principals and two board chairmen of the schools from which the two candidates were drawn first met with the independent fifth interviewer, herself a HSCL, on the morning of the interview. The members of the interview board were briefed by the independent interviewer as to the requirements for the post and learned from her that this new position would require a lot of flexibility. The hours of work were not the normal teaching hours, and a requirement to work outside normal teaching hours was essential in order to liaise with parents and outside bodies. This was contrary to what had been previously advised to both candidates. The panel alerted the candidates during the course of the interview of their misunderstanding, and spent time ensuring that each appreciated the nature and requirements of the new position.
In the course of questioning their flexibility regarding working hours it was accepted that a query regarding the possible effect of their family life on such flexibility was put to both candidates.
The three panel members present separately gave evidence to the Court that the panel in fact did accept the claimant's assurance regarding her flexibility, and that there was no further discussion on this matter when they later reviewed the candidates in arriving at their decision. The Court accepts, on balance, that this point did not influence the final selection of candidate.
The respondents deny that they practised any form of discrimination in their employment practices. In the instant case, they say that the interviews were conducted fairly and that the result represented the objective assessment of the merits of the candidates by the interview panel.
Having carefully evaluated the evidence adduced together with the submissions of the parties, the Court considers that such a question, put to the claimant, was indirectly discriminatory, in that more women than men would generally be adversely affected by a requirement to be flexible due to family commitments. Furthermore, the Court is satisfied that this indirect discrimination is not objectively justified by the need to satisfy themselves of the applicants' ability to be flexible as this information could have been elicited without a reference to family commitments.
Taking into consideration the criteria used to decide this appointment, the limited notes, and the statements made at the hearing, the Court considers on balance that the appointee was chosen on the basis of objective criteria. The Court is satisfied that the panel clearly needed to satisfy themselves of the applicants' ability to be flexible. This was particularly so in the circumstances where the panel had learned of the flexibility requirements of the post immediately prior to the interviews and this information was only relayed to the applicants at the interview. The Board of Management in accordance with their "Constitution of Boards and Rules of Procedure", was given details on the Appointment of Teachers which contains guidelines for those on interview boards. The Court is satisfied that the general format of the interviews was in accordance with the guidelines and the Court is satisfied that the result was a fair and objective assessment of the overall suitability of the candidates.
While the claimant did suffer some distress at being asked this question, the Court is satisfied that neither the question itself, nor the claimant's response to it materially affected the outcome of the interview.
The Court holds that in putting the offending question to the claimant at the interview, the respondents discriminated against her within the meaning of Section 2(a) of the Act and contrary to Section 3(1) of the Act. The Court determines that the appropriate redress is compensation for the distress suffered, which the Court measures at €1,500. The Court awards the claimant compensation in that amount.
The recommendation of the Equality Officer is varied accordingly.
Signed on behalf of the Labour Court
1st July, 2002______________________
Enquiries concerning this Determination should be addressed to Gerardine Buckley, Court Secretary.