WILLIAMSON (REPRESENTED BY TUI) AND MONAGHAN VOCATIONAL EDUCATION COMMITTEE
This dispute involves a claim by Ms. Martha Williamson that Monaghan VEC discriminated against her 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.
2.1 The complainant was interviewed for one of four posts at Assistant Principal level in Beech Hill College in September, 1998 and was unsuccessful. She appealed the decision of the Interview Panel to the Arbitrator in accordance with the relevant Department of Education and Science Circular and her appeal was upheld. The rescheduled interviews were held in December, 2000 and the complainant was again unsuccessful - all four posts were filled by male candidates. She alleges that 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. Williamson to the Office of the Director of Equality Investigations on 6 June, 2001, under the Employment Equality Act, 1998. 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 22 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 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 was interviewed for a post at Assistant Principal level in Beech Hill College in September, 1998 and was unsuccessful - four male candidates were successful and subsequently appointed in an acting capacity. She appealed the decision of the Interview Panel to the Arbitrator in accordance with the relevant Department of Education and Science Circular. Her appeal was upheld by the Arbitrator and the re-scheduled interviews were held in December, 2000. The complainant was again unsuccessful - the four previously successful male candidates were selected. The complainant states that the re-scheduled interviews were due to take place in late September, 2000. However, they were delayed pending the receipt of a revised Department of Education and Science Circular (Circular 44/00) covering the calculation of part-time service and consequently this delay disadvantaged her as service was one of the three criteria across which candidates were assessed. - the other two being (i) Capacity to meet the needs of the school and (ii) Experience of a professional nature in the field of education and involvement in the school. The complainant further contends that the marks awarded to her at interview in respect of (i) and (ii) 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 and her extensive involvement in the field of education generally. She submits that this is particularly evident from the fact that three of the four male appointees were assigned duties as Year Teacher, an area where she had thirteen years experience as Assistant Year Teacher - two of the successful candidates had no such experience and the other had performed those duties for about two years early in the 1980's. She asserts she was discriminated against on the basis of her gender.
3.2 The complainant also 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.
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 submits the reality of the situation is that the Interview Panel considered candidates other than the complainant more suitable for promotion in accordance with criteria and a marking scheme agreed centrally between the Department, the union and the Irish Vocational Education Association. 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 so as to ensure compliance with ECJ jurisprudence and that any other response would have been foolhardy in the circumstances. It accepts that two of the successful male candidates benefited slightly from the delay as they had part-time service which became reckonable.
4.2 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 its competitions.
5. CONCLUSIONS OD THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not Monaghan VEC (i) discriminated against Ms. Williamson 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 deferral of the interviews from September, 2000 to the following December resulted in two of the successful male candidates receiving higher marks for service and that this disadvantaged her. It is unclear how the respondent became aware of issues surrounding calculation of service at that time, however I note the complainant's comment that she was aware of the matter due to her 1 S.I. 337 of 2001 membership of the Executive Committee of the TUI. I also note the Department of Education and Science Circular on the matter (44/00) is dated November, 2000. I am satisfied therefore that the issue was the subject of discussions in September, 2000, around the time the interviews were originally scheduled and I accept the respondent's view that it was prudent to defer the interviews pending clarification of the matter. I accept that the recognition of the additional part-time service impacted adversely on the complainant. However, I am satisfied that the same marking process in terms of service was applied equally to all five candidates in the competition, in accordance with Circular 44/00 (dated November, 2000) which applied to all competitions after 1 October, 2000. Consequently, I cannot accept that it constitutes discrimination of the complainant on grounds of gender. The fact that the difference in marks between the complainant and one of the successful male candidates who benefited from the Circular is less than the additional marks awarded for reckonable part-time service, does not alter the argument of discrimination. In conclusion on this point I would state that I have examined marks awarded to the candidates under this criterion and I am satisfied that they have been correctly computed in accordance with Circular 44/00.
5.5 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 four male candidates with 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 two of the successful candidates and equally qualified with the other two. 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 satisfied that the 2  IRLR 193 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 balance. 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 Panel members 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 all interview notes ceases immediately. 3 AEE/99/9
5.8 From perusal of these notes I am satisfied that all five candidates were asked broadly similar questions. I am also satisfied that they were given roughly the same amount of time at interview - eighteen to twenty minutes. The notes indicate that all candidates used their experience and knowledge to respond to the questions asked of them. The complainant focuses on one particular aspect of the notes which, she submits, demonstrates that she answered a question on the topic of Adult Education in a more comprehensive manner than two of the successful candidates. Whilst I accept this may be the case, I cannot conclude that it constitutes unlawful discrimination of her. To do so would be to isolate a single response and attach undue weight to it in the context of a candidate's overall performance at interview. 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