This dispute involves a claim by Ms. Mary Carroll that she was discriminated against by Monaghan Vocational Committee on grounds of gender, within the meaning of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8(1) of that Act in respect of the selection process for promotion to the post of Assistant Principal at Beech Hill College, following interviews held on 11 December, 2000.
2.1 The complainant applied for a post at Assistant Principal level in Beech Hill College in September, 2000 and was interviewed for the position on 11 December, 2000. She was unsuccessful and the post was awarded to a male candidate. The complainant alleges she was discriminated against on grounds of gender. She further alleges that a discriminatory practice operates in favour of males in respect of promotion to Senior Management Posts, both within Beech Hill College and across Monaghan VEC generally. The respondent rejects the complainant's allegations.
2.2 The Teachers' Union of Ireland (TUI) referred a complaint on behalf of Ms. Carroll to the Office of the Director of Equality Investigations (the Equality Tribunal) on 10 July, 2001, under the Employment Equality Act, 1998. Section 77(5) of that Act provides that a complaint must be referred to the Tribunal within six months of the last occurrence of the alleged discriminatory act. In the instant case this period expired on 10 June, 2001 and the complaint was out of time. However, the Director exercised her powers pursuant to section 79(6) of the Act and extended the period for referral of the complaint until 10 July, 2001. Consequently, the complaint was admissible. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under the Act. Written submissions were received from both parties and a hearing took place on 21 October, 2002. A number of issues emerged at the hearing which required clarification and gave rise to further submissions and correspondence from the parties subsequent to the hearing. Final confirmation that the parties were satisfied that the Equality Officer was in possession of all relevant information from their perspective was received on 22 September, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant applied for a post at Assistant Principal level in Beech Hill College, with responsibility for Night Classes/Adult and Community Education. Three candidates were interviewed for the post - the complainant and two males. The complainant was unsuccessful and the post was awarded to one of the male candidates. The competition was governed by Department of Education and Science Circular 43/00. This Circular set out the criteria across which candidates were assessed as follows: (i) Capacity to meet the needs of the school (50% of marks); (ii) Service to the Scheme (30% of marks) and (iii) Experience of a professional nature in the field of education and involvement in the school (20% of marks). The complainant contends that the marks awarded to her at interview in respect of (i) and (iii) above do not reflect the many years of experience and proven ability which she possessed, the manner in which she discharged her duties in the school, her extensive involvement in the field of education generally and her particular experience in the area of Adult Education. She also contends that she was not awarded the correct marks in respect of her service to the scheme in accordance with the terms of the Department's Circular 43/00, in that she was not given credit in respect of the time (eight years) she was employed as an Adult Education Organiser with Monaghan VEC. The complainant further argues that the delay in holding the interviews (from September to December, 2000) resulted in the loss of marks to her in respect of reckonable service which disadvantaged her. She asserts that the alleged treatment of her amounts to unlawful discrimination on grounds of gender.
3.2 The complainant submits, on the basis of data supplied by the respondent, that thirty-three posts at Assistant Principal level in Monaghan VEC were filled by way of competition between 1980/81 and 2000/01. During this period 61% of those posts were filled by males and 39% by females. Nine of the thirty-three posts were at Beech Hill. Of these 89% were filled by males and 11% by females. The complainant argues that these statistics support her contention that there is a bias in favour of males at this level within the VEC and Beech Hill College in particular.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's allegations. It submits that the selection process was conducted in accordance with the appropriate Department of Education and Science Circular (Circular 43/00) and in line with its standard practices. It further submits the reality of the situation is that the Interview Panel considered another candidate more suitable for the post than the complainant, in accordance with criteria and a marking scheme agreed centrally between the Department, the union and the Irish Vocational Education Association and that the complainant was not treated less favourably on the basis of her gender.
4.2 The respondent states that credit for service to the scheme was computed in accordance with the relevant Departmental Circular (44/00) and that the terms of the Circular were applied equally to all three candidates. It adds that this Circular (which is dated November, 2000) was in force at the time of the competition and the respondent was therefore obliged to apply its terms to the candidates. The respondent states that Circular (44/00) defined reckonable service for the purposes of the competition as "service in a permanent, temporary, substitute, eligible part-time or part-time capacity as a teacher in the particular VEC scheme" and consequently, the complainant's service as an Adult Education Organiser was not reckonable. It adds that this interpretation was confirmed by the Department of Education and Science. The respondent accepts that the complainant may have had this service considered as reckonable previously, but contends that this was based on the definition of servicecontained in the particular Circular governing those competitions.
4.3 The respondent accepts that the interviews were deferred from September, 2000 until December, 2000. It states that it became aware of the existence of an European Court of Justice judgment which affected recognition of part-time service for the purposes of computing service and that the Department of Education and Science was to issue a Circular on the matter. The respondent's Chief Executive Officer advised the candidates of this matter and gave them the option of proceeding with the interviews as arranged but with the new marking system. As there was not unanimity between the candidates as to how to proceed the Chief Executive decided to postpone the interviews until the matter was regularised. The respondent submits that this approach was the correct one to take to ensure compliance with ECJ jurisprudence and that any other response would have been foolhardy in the circumstances.
4.4 The respondent rejects the complainant's assertion that there is a bias in favour of male candidates operated by Interview Panels, either generally across Monaghan VEC or in Beech Hill in particular. It submits that the over the past twenty years 33% of male and 44% of female candidates have been appointed to Middle Management Posts in Monaghan VEC. For the period 1996-2002 the statistics are 46% of female and 40% of male candidates. It further states that during this latter period 36% of female applicants and 30% of male candidates were appointed to posts at Assistant Principal level across the VEC. It contends that these statistics refute the complainant's assertion of bias in favour of males in promotion competitions.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not Monaghan VEC (i) discriminated against Ms. Carroll on grounds of gender, within the meaning of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8(1) of that Act in relation to the selection process for promotion to the post of Assistant Principal at Beech Hill College following interviews held in December, 2000 and (ii) whether or not a culture exists in Monaghan VEC and in particular Beech Hill College, that is biased in favour of males for senior positions. In reaching my decision I have taken account of all submissions, oral and written, made by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides:
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as 'the discriminatory ground',), one person is treated less favourably than another is, has been or would be treated.".
Section 6(2) of the Act defines the discriminatory grounds which includes, inter alia,
"(a) that one is a woman and the other is a man (in this Act referred to as
'the gender ground')"
Section 8(1) of the Act provides:
"In relation to - ......... (d) promotion or re-grading, ...... an employer shall not discriminate against an employee.".
5.3 It is established caselaw of this Tribunal and the Labour Court that in cases of alleged discrimination on grounds of gender the complainant must, in the first instance, establish primary facts from which it can be inferred that she suffered discriminatory treatment. When such a prima facie case is established the onus shifts to the respondent to rebut the inference of discrimination. Such an approach is now part of Irish law with the coming into force of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011.
5.4 One of the three criteria across which candidates were assessed was "service to the scheme". The complainant contends that she was not awarded the correct marks in this category, in that her service as an Adult Education Organiser (AEO) was not counted as reckonable service, although it had been previously, a point which was acknowledged by the respondent. The respondent's argues that the complainant's service as an AEO was not counted as reckonable service in respect of the December, 2000 competition because Circular 44/00 (which was in force at that time) provided that only service as a teacher in the VEC Scheme was to be counted and I am satisfied that this is the case. It also argues that the definition(s) of reckonable service in respect of previous competitions which were contained in other Departmental Circulars in force at those times, would have permitted the inclusion of the complainant's time and an AEO. I have examined these Departmental Circulars (Circular 30/97 and Circular 46/98) and I am satisfied that the definitions of reckonable service contained in them could be interpreted in the fashion argued by the respondent. I also note the written confirmation from the Department of Education and Science (dated 5 December, 2002) stating it was that Department's position that reckonable service under Circular 44/00 was restricted to qualified teaching service only - it did not extend to service in another capacity. I am satisfied that the respondent was obliged to apply the terms of Circular 44/00 to the competition and that it did so equally to all candidates. I have examined the marks awarded to each of the three candidates in respect of service and I am satisfied that they have been correctly computed in accordance with Circular 44/00. It follows that the respondent's actions in this regard do not constitute discrimination of thecomplainant on grounds of gender.1 S.I. 337 of 2001
5.5 The complainant states that the interviews were delayed from September to December, 2000 and the respondent accepts that this was the case. I am satisfied that there was a state of flux at that time in respect of recognition of part-time service and changes to selection and appeal procedures in relation to promotion to posts within VEC Schools in general. I am also satisfied that these factors were discussed by the respondent's Chief Executive Officer with the candidates in September, 2000 and that the outcome of these discussions was a decision by the Chief Executive Officer to postpone the interviews. I accept that the complainant was adversely affected as a result of this action in that Circular 44/00 applied to the competition and her period of service as an AEO was excluded. However, I cannot accept that it constitutes unlawful discrimination of her on grounds of gender as ultimately the correct Circular (44/00) was applied equally to all three candidates in the competition.
5.6 The competition was governed by Department of Education and Science Circular
43/00. This set out the three criteria across which candidates were to be evaluated as follows: (i) Capacity to meet the needs of the school (50% of marks); (ii) Service to the scheme (30% of marks) and (iii) Experience of a professional nature in the field of education and involvement in the school (20% of marks). Section 5 of that Circular sets out "an indicative but not an exhaustive list of appropriate areas of testing by the Selection Board in awarding marks under each of the three headings". I have examined the Curriculum Vitae of the complainant and the two male candidates wit reference to those indicative areas of testing. I am satisfied, on balance, that the information contained on the Curriculum Vitae demonstrates that the complainant was better qualified than the other candidates. I also note the decision of the Northern Ireland Court of Appeal in Wallace and the South Eastern Health Board2 where it held "the fact that the successful candidate was a man and the unsuccessful, but better candidate was a woman, is itself sufficient evidence of discrimination on grounds of sex as to shift the evidential burden to the employer.". In light of the foregoing, I am 2  IRLR 193 satisfied that the complainant has discharged the evidential burden required of her and it falls to the respondent to rebut the inference of discrimination raised.
5.6 In Gleeson v The Rotunda and The Mater Misericordiae Hospital3 the Labour Court
provided useful guidance on the factors which might be explored to determine whether or not a selection process was biased and I have been mindful of the rationale suggested in that decision in the course of this investigation. I am satisfied that the criteria across which the candidates were assessed were pre-determined and are consistent with the Departmental Circular governing the competition (43/00). I am also satisfied that the composition of the Interview Panel was consistent with that Circular as regards gender composition. In relation to this issue, I note in particular that a member of the Interview Panel was selected from a list of experts nominated by the TUI and that all three members of the Panel had considerable experience in interviewing. Finally, I note the complainant's response at the hearing that she was not asked any question which she considered to be discriminatory.
5.7 I have no doubt that a selection process which involves an interview may not always
yield the most suitable candidate for a post. However, it is not my task to investigate this issue, rather I must examine whether the selection process was tainted with a bias which was premised on gender. The Interview Panel informed me at the hearing that two of them had made notes during the course of the interviews, however these members had subsequently destroyed them. This issue has been raised previously on several occasions by both this Tribunal and the Labour Court, as such notes are of considerable assistance when investigating allegation's such as the complainant's. The respondent provided notes which were compiled during the course of the interviews by a person who was acting as secretary to the Interview Panel. It submits however, that the secretary was not assessing the candidates and his notes should not be interpreted as such. In the absence of any notes from the Interview Panel itself, these notes are the only material available to me which provides any indication of the responses given by the candidates during the course of the interviews. Before leaving this issue I would suggest that the respondent takes steps to ensure that the practice of destroying interview notes ceases immediately. 3 AEE/99/9
5.8 From perusal of these notes I am satisfied that all three candidates were asked broadly similar questions. I am also satisfied that they were given roughly the same amount of time at interview - thirteen to fifteen minutes. The notes indicate that all candidates used their experience and knowledge to respond to the questions asked of them and I note in particular that the complainant and the successful candidate were awarded identical marks in respect of the two criteria under the direct control of the Interview Panel. The respondent states that it was the candidates' overall performance at interview which yielded the final scores and that these were agreed by all members of the Interview Panel, one of whom was a TUI nominee, at the end of the interview. All three members of the Interview Panel attended the hearing and I found their evidence to be forthright and credible. In light of the foregoing I am satisfied that that the selection process was conducted in a fair manner, that the decision of the Interview Panel reflects an objective assessment of the candidates at interview and it was not influenced by the gender of the candidates. It follows that the respondent has discharged the burden of proof which was placed on it in respect of this issue and has rebutted the inference of discrimination.
5.9 I shall now turn to the issue of whether or not a culture exists in Monaghan VEC and in particular Beech Hill College that is biased in favour of males for senior positions. Both parties furnished statistics in support of their respective cases. The complainant applied for a post at Assistant Principal level and I consider the data in respect of that level to be the most appropriate for the purposes of my investigation. I have examined the data furnished by the respondent in respect of competitions at the level of Assistant Principal in Monaghan VEC between 1981/82 to the last competition in 2000/01 which pre-dates the reference of this complaint to the Equality Tribunal. This data shows that there were twenty separate competitions at Assistant Principal level throughout the VEC involving thirty three posts, of which twenty were assigned to males (61%) and thirteen to females (39%). One hundred and twenty three applicants were involved in those competitions of which seventy-three (59%) were male and fifty (41%) were female. Twenty of the male applicants were successful, which represents 27% of the total male candidates over the period, whereas thirteen of the fifty female applicants representing 26% of those candidates were successful. I am not satisfied that these statistics of themselves give rise to an inference of discrimination over the years.
5.10 Turning to Beech Hill College I note that nine posts at Assistant Principal level have been filled during the period mentioned above in the course of six competitions. Eight males (89%) and one female (11%) have been appointed to these posts. I also note that 33 candidates applied for these competitions, 70% of whom were male and 30% female. Consequently 35% of male applicants were successful and 10% of female applicants were successful. I cannot accept that these statistics of themselves give rise to an inference of discrimination. Firstly, I consider the pool to be too small and a difference of one post either way can have a significant impact on the results. Secondly, the data relates to a twenty year period. Thirdly, the results, when compared with the results for the VEC in general for the same period, bear no resemblance. As regards this point, for the complainant's contention to be accurate one would expect that Interview Panels in respect of Beech Hill College acted in a manner which is totally inconsistent with the outcome of similar processes across the remainder of the VEC. On balance I cannot accept such a proposition and I find that the complainant has failed to establish a prima facie case that the Interview Panels in respect of competitions for Beech Hill operated a practice that was biased against female candidates at Assistant Principal level.
I find that the respondent did not discriminate against the complainant in respect of the selection process for promotion to the post of Assistant Principal at Beech Hill College following interviews held in December, 2000. I also find that the complainant has failed to establish a prima facie case of discrimination in respect of her assertion that a culture exists in Monaghan VEC and in particular Beech Hill College, that is biased in favour of males for senior positions.
30 December, 2003