Glennon (Represented by ASTI) AND Board of Management, St Clare's Comprehensive School and the Minister for Education and Science
1.1 This dispute concerns a claim by Ms Maureen Glennon that she was discriminated against by the Board of Management, St Clare's Comprehensive School, Manorhamilton and by the Minister for Education and Science on the ground of gender contrary to the provisions of the Employment Equality Act, 1998 when she was unsuccessful in a competition for promotion to Assistant Principal.
1.2 ASTI, on behalf of the complainant, referred a claim to the Director of Equality Investigations on 14 June 2001 under the Employment Equality Act, 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 31 August 2001 to Anne-Marie Lynch, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from all the parties and a joint hearing was held on 28 March 2002. Subsequent correspondence with the parties concluded on 26 March 2003.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 In 1981, the complainant was appointed to a permanent post in St Clare's Comprehensive School in Manorhamilton as a teacher of mathematics and science. She taught mathematics and biology to Leaving Certificate level, and science, life skills and Civic, Social and Political Education (CSPE) to Junior Certificate level. In 1992, the complainant was appointed to a "B" post of responsibility (now a Special Duties Teacher or SDT). The duties attaching to this particular post were: assistant in girls' pastoral care, co-ordinator of girls' extra-curricular activities and break-time supervision.
2.2 On 17 November 2000, applications were sought within the school for appointment to three permanent posts of Assistant Principal (AP, formerly "A" posts of responsibility). The complainant, together with five male and two female colleagues, applied and was interviewed on 15 December. Three of the male candidates were successful in the competition, and a fourth male candidate was selected for a temporary assignment. The complainant contended that the reason she was unsuccessful was because of gender discrimination.
2.3 The complainant pointed out that the Selection Committee that carried out the interviews was all-male. She said this made her feel uncomfortable and she suggested it contributed to gender discrimination. She referred to a stipulation in the Education Act, 1998 regarding gender balance on interview boards and also cited caselaw including Mitchell v Southern Health Board (AEE98/9) and Riney v Co Donegal VEC (DEC-E2001-030) in support of her claim. She acknowledged that the Selection Committee members were ex-officio, but pointed out that there had been a previous circumstance where one Committee member had agreed to step aside because of a relationship with a candidate for a post. She said this was an example of flexibility that could be introduced as necessary.
2.4 The complainant said that the selection and appointment process was governed by Department of Education and Science Circular Letter 15/97, as amended by CL 32/00, which provided that the criteria and weighting to be used in selecting candidates for Posts of Responsibility were as follows:
- Capacity of the applicant to meet the needs of the school and the case made at interview 50 marks
- Service to the school 30 marks
- Experience of a professional nature in the field of education and involvement in the school 20 marks
2.5 In relation to the first selection criterion, the complainant was awarded 32 out of the available 50 marks. The successful candidates received between 35 and 45 marks. The complainant said that her interview presentation was extremely professional and she demonstrated her ability and capacity through use of an overhead projector display. She said she had ably demonstrated her capacity to do the SDT duties over nine years in contrast with one of the successful candidates who had held his SDT post for just two years.
2.6 The complainant acknowledged that she had less service than the successful male candidates. They were awarded 29 marks, 27 marks, 25 marks and 23 marks in this category, all in accordance with their respective service, while she received 18 marks. She asserted, however, that non-reckoning of time spent on career break (one year in her case) had a disproportionate effect on females, who are more likely to take career breaks for childcare reasons. She also maintained that the deficit should have been made up when the candidates were assessed under the two remaining criteria.
2.7 Separately from her claim of gender discrimination, the complainant lodged an appeal to an Arbitrator against the decision of the Selection Committee, following the procedures in CL 15/97. She said that the Arbitrator's remit was to adjudicate on the correctness of the marking scheme and the application to the agreed criteria, but that he/she did not have a function in identifying whether discrimination may have occurred in the selection process. The Arbitrator reported on 18 October 2001 that the third of the selection criteria (Experience of a professional nature and involvement in the school - 20 marks) had been incorrectly applied because a global mark was given instead of being broken down among the sub-headings for this criterion.
2.8 The complainant was awarded 14 out of the available 20 marks in this category, with the four successful candidates each being awarded 16 marks. The complainant said that she had a wide range of professional experience and involvement in the school at least equal to if not greater than the successful candidates. She further claimed that her three periods of maternity leave would have militated against her contribution to the extra-curricular activities of the school, as would her ongoing childcare commitments. She said she did not dispute that extra curricular activities are a factor at interview, but because the marks were given globally it is not possible to tell how much of a factor they are.
2.9 The complainant said that relative to the four successful candidates, her teaching experience, experience in administrative work, professional qualifications and development and extra curricular activities meant she was at least equal to them. She claimed that the Chairman of the Board of Management had stated that all eight candidates were qualified and capable of being appointed to the Assistant Principal post, and she said this concession meant that the onus shifted to the respondent to rebut the inference of discrimination. She further claimed that the Chairman had commented on his efforts to address the gender imbalance by appointing female teachers to lower-paid SDT posts, but expressed no equivalent desire to redress the imbalance at the higher paid AP level.
2.10 The complainant said that since 1989 there had been three competitions for appointment to AP, or its predecessor, "A" post of responsibility. No female had been appointed to any of these posts. The complainant said it was practically unheard of for Deputy Principals or Principals to be appointed from outside the pool of Assistant Principals and she said that the gender profile of post-holders in the school constituted a barrier or even a bar to the promotion of females to these posts in the event of a vacancy arising.
2.11 The complainant said that her claim of discrimination by the first named respondent was supported by the comments of the Chairman referred to in 2.8 above, her qualifications and experience, the failure of the Selection Committee to credit her with service for her year on career break, her reduced availability due to pregnancy and childbirth, the lack of gender balance on the Selection Committee and the lack of transparency about how candidates were measured under the selection criteria. As redress, she sought appointment to Assistant Principal and compensation for distress caused by the discrimination.
2.12 In relation to the joining of the Minister for Education and Science (the Minister) as a respondent in her claim, the complainant said that the Department of Education and Science (the Department) oversaw adherence with and implementation of CL 32/00, the basis for selection and appointment of teachers to posts of responsibility. All such appointments were submitted to the Department for approval. The Department was also responsible for the disallowance of career breaks as reckonable service, and the complainant contended that it bore ultimate responsibility for influencing Trustees - religious bodies and Vocational Education Committees (VECs) - to make changes necessary to ensure gender equality on selection committees. Further, the Department was the paymaster of the AP allowance, and Employment Appeals Tribunal decision Sullivan v Department of Education (PW2/97) established that the Department is the employer for the purposes of salary.
3. SUMMARY OF THE FIRST RESPONDENT'S CASE
3.1 The first named respondent said that it rejected the claim of discrimination and it denied that it acted contrary to the provisions of the 1998 Act. It said that all schools were entitled to a core management team consisting of a Principal and Deputy Principal. Depending on school enrolment and teacher allocation, middle management posts may arise at SDT or AP level. For the school year 2000/2001, St Clare's Comprehensive School was entitled to six posts at AP level (each meriting an annual allowance of €6,111) and eight posts of SDT (each meriting an allowance of €2,703). Three AP posts became vacant during the summer of 2000 because of retirements. Following sanction from the Department, the Board of Management organised a competition to fill the posts. Applications were confined to permanent teachers at the school, with not less than three years' wholetime experience. Eight applications were received, six from candidates already holding SDT posts.
3.3 The respondent said that the school was created in the early 1970s by the merger of three existing schools. It was established by agreement of the Department, the Roman Catholic Diocese of Kilmore and County Leitrim VEC. These were the Trustees for the school, and each Trustee was entitled to nominate one member to the Board of Management. The Bishop of Kilmore nominated the Chairman of the Board, and had always nominated a priest. The Chief Executive Officer of the VEC was ex officio a Member of and Secretary to the Board of Management. The CEO post was filled by national competition organised by the Local Appointments Commission, and the current male incumbent had been Secretary of the Board since 1980. The Department had consistently nominated the District Inspector as its nominee, and the current incumbent was also male. Discussions have been ongoing for some years about changing the composition of Boards of Management to include parent and teacher representation and to achieve gender balance, but have not been concluded. In the meantime, the respondent pointed out that the Board of Management was obliged to act as the Selection Committee in accordance with CL 32/00 which governs the operation of promotion competitions, and that the Board had no discretion to alter its own composition.
3.4 Regarding the question of non-reckonability of career breaks for service, the respondent pointed out that a career break was an agreed suspension of service and was unpaid. It did not count as service either for competitions or for superannuation purposes. The respondent said that its records indicated that the complainant's career break was for travel purposes, but that the purpose of the career break did not matter. The important factor was the suspension of service.
3.5 The respondent acknowledged that the Arbitrator found that it should have applied a breakdown of the 20-mark criterion, but pointed out that its failure to do so was in accordance with the provisions in operation at the time, and suggested that another Arbitrator may have found differently. Prior to 1997 the Board itself determined what criteria would be used in promotion competitions. CL15/97, issued by the Department, stipulated that the criteria and marking scheme described in 2.4 above must be used in competitions for promotion to AP and SDT posts. The criterion for service was to be worth 30 marks, with the candidate with the longest full-time service receiving full marks and the other candidates receiving pro rata marks under this heading. CL32/00 amended this to give appropriate credit for parttime and temporary wholetime service, following the 1998 European Court of Justice decision in Hill and Stapleton v the Revenue Commissioners and Department of Finance (Case C-243/95). The capacity criterion (50 marks) and the experience criterion (20 marks) did not have the same arithmetical system of calculation and involved important qualitative factors. Training courses held on the introduction of the criteria in 1997 had specifically stated that subdivision of these marks was not required. The respondent acknowledged that it was union policy that these marks should be broken down, but agreement had not yet been reached.
3.6 The respondent denied that the Chairman made the statement quoted at paragraph 2.8 above. It said that the Board had stated that all the applicants were qualified to apply, that is they were permanent teachers with not less than three years' wholetime experience. Regarding the comment about redressing the gender imbalance, also referred to at 2.8 above, the respondent said that this arose in its submission to the arbitrator. What was actually said was that "...the Board of Management strongly supports the principle of gender balance in every area of activity...The position regarding gender balance among post holders will not become clear until at least four posts as Special Duties Teachers are filled." The respondent pointed out that if it were to introduce a gender dimension to secure appointments of females, this would infringe the rights of male teachers and would be illegal.
3.7 The respondent noted that the complainant asserted that her service deficit should have been made up when she was assessed under the two remaining criteria. It contended that the complainant herself could not judge the performance of the other candidates in an independent or objective way. She did not interview the other candidates, had no way of judging how they performed at interview, could not objectively judge their contributions to the school and would have a subjective viewpoint of her own merits and her capacity to meet the needs of the school. The respondent accepted that the complainant was a good candidate, but said that other candidates acquitted themselves better at the interview.
3.8 The respondent said that the criteria used to assess candidates were those prescribed in CL 32/00. These had been agreed with the relevant unions and contained no elements that could be considered gender-based. No improper issues were addressed and no improper questions were asked. The criteria were applied equally to all the candidates, and no marks were awarded or deducted for gender. The respondent said it could not reserve posts for either gender. Candidates must be ranked for promotion in accordance with their aggregate marks under the three criteria, and the respondent claimed that this is what it did.
4. SUMMARY OF THE SECOND RESPONDENT'S CASE
4.1 The Department of Education and Science (the Department) confined its submissions to the question of whether the Minister for Education and Science (the Minister) had been correctly joined as a respondent in this claim.
4.2 The Department said that the complainant was employed under a contract of employment with the Board of Management of St Clare's Comprehensive School. The Minister was not a party to the contract. His role in relation to teachers employed by comprehensive schools was generally confined to paying teachers' salaries and superannuation, determining terms and conditions of employment and setting required levels of teacher qualifications. The Board of Management was responsible for recruitment, selection, appointment, discipline and dismissal of teachers, and did not act as an agent of the Minister in carrying out these functions. The Department pointed out that any attempt by the Minister to intrude on the exercise of a Board's management functions would be ultra vires having regard to the provisions of section 24 of the Education Act, 1998.
4.3 The Department agreed that the Minister nominated one member of the Board, but pointed out that section 24 (3) of the Education Act, 1998 left no doubt that the Board carries the statutory obligation to appoint teachers and other staff. The Department also referred to the decision of Mr Justice Kearns in Tobin v Chairman of the Board of Management of Mayfield Community School, Secretary of Mayfield Community School and Minister for Education (High Court, 21 March 2000). The school referred to, in common with St Clare's Comprehensive School and all comprehensive and community schools, was governed in accordance with a Deed of Trust/Instrument of Management. The High Court reviewed the operation of the Deed regarding the question of the employer of teachers in community schools, and Mr Justice Kearns concluded "On the materials placed before this Court, I am satisfied that the Applicant was employed by the First and Second named Respondents and that they, not the Third named Respondent, purported to dismiss him."
4.4 In the circumstances, the Department submitted that the Minister was not properly a party to this claim. It said that his lack of involvement in the selection process meant he was not in a position to defend himself against claims, which should properly be directed solely to the Board of Management.
5. INVESTIGATION AND CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In reaching my conclusions in this case I have taken into account all of the submissions, both oral and written, made to me by the parties.
5.2 The complainant alleged that the respondents discriminated against her on the ground of gender contrary to the provisions of the Employment Equality Act, 1998. Section 6 of the Act provides that discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated, on one of the discriminatory grounds, which include gender. Section 8 provides that
(1)In relation to-
(a) access to employment...
(b) conditions of employment...
(d) promotion or re-grading...
an employer shall not discriminate against an employee or prospective employee...
The joining of the Minister of Education and Science as a respondent
5.3 The complainant cited an Employment Appeals Tribunal decision as support for her joining of the Minister as a respondent. I note that this decision found that the Department was "the employer for the purposes of the Payment of Wages Act, 1991". The complainant in this matter has not made a claim in relation to salary, nor any claim under the Payment of Wages Act, 1991, but rather a claim that she was discriminated against in the context of her failure to secure a promotional position, under the Employment Equality Act, 1998. I recognise that the Minister approves the filling of such posts, sets minimum eligibility requirements and governs such issues as pay and conditions. I note however that section 24 of the Education Act, 1998 provides
(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and anyrecognised trade union and staff association representing teachers or other staff as appropriate.
5.4 The Tobin case, cited by the Department in support of its claim that the Minister was not an appropriate respondent, involved the dismissal of a teacher. In that case, Mr Justice Kearns was satisfied that the Minister did not employ the plaintiff nor did he purport to dismiss him. It is clear that the Education Act provides that the role of the Minister in dismissing, or indeed appointing, teachers is confined to the agreement of procedures, along with the patron, trade union and others. Although it must be done in accordance with these procedures, the actual appointment is a function of the board. I am satisfied therefore that the correct respondent in this claim is the Board of Management of St Clare's Comprehensive School.
The complainant of discrimination against the complainant
5.5 The traditional approach taken to complaints of discrimination on the original ground of sex in the case law of the European Court of Justice, and sex and marital status in the caselaw of the Labour Court and Equality Officers, has been that once a complainant establishes a prima facie case of discrimination, the onus then moves to the respondent to rebut the presumption of discrimination. This common law approach has become the statutory requirement in complaints of gender discrimination in employment following the transposition of Council Directive 97/80/EC into Irish law on 18 July 2001 by means of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001). The Regulations provide that [w]here in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
5.6 The first requirement, therefore, is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) (AEE/99/8), the Labour Court said "...this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging this evidential burden. If she does, the respondent must prove she was not discriminated against on grounds of her gender. If she does not, her case cannot succeed."
5.7 The complainant's contentions supporting her claim of discrimination are summarised in paragraph 2.10 above. I will consider each of these contentions separately.
The comments attributed to the Chairman
5.8 In the complainant's submission, the person named as the Chairman is in fact the Secretary of the Board of Management. It was not made clear as to which individual is alleged to have made the comments, but as both are Board members it is not material.
5.9 The first attributed comment is that "The Chairperson...has stated that all eight candidates were qualified and capable of being appointed to the Assistant Principal post". The respondent denied that any such comment was made, but I note that its submission says that no candidate was deemed unsuitable, and in the event that the successful candidates had turned down the posts, it would have been satisfied to appoint the lower ranked candidates. The arbitrator's report says that the Board had asserted "all eight candidates were suitable but that the successful candidates were in the first four of the competition which the Appellant was not". It would appear that the respondent made some comment to this effect. I am not satisfied however that a comment such as this constitutes prima facie evidence of discrimination.
5.10 The complainant asserts that the second comment means that the respondent had some intention of appointing females to SDT posts to redress gender imbalance but demonstrated no interest in doing so for the AP post. The respondent denied that this comment was made, and stressed any action intended to redress any gender imbalance would be unlawful. I note that the actual statement of the Board to the arbitrator was that "position regarding gender balance among post holders will not become clear until at least four posts as Special Duties Teachers are filled". I am satisfied that this is no more than a statement of fact, and I agree with the respondent's claim that it was precluded from considering gender in making the appointments.
5.11 In this regard, I note that the complainant's submission to the arbitrator, referring to the fact that she had been unsuccessful in three competitions for AP, includes the statement "Surely if the Board are strongly supportive of the principle of gender balance, as they state, they could have nominated me on one of these occasions and shown that they do support gender balance...". I am satisfied that this would constitute an attempt to introduce a quota system into the Employment Equality Act.
5.12 Positive action is not unlawful under the terms of the Act. Section 24 (1) provides that
The provisions of this Act are without prejudice to measures to promote equal opportunity between men and women, in particular by removing existing inequalities which affect women's opportunities in the areas of access to employment, vocational training and promotion, and working opportunities.
Positive action measures have been considered on a number of occasions by the European Court of Justice, in terms of the provisions of Article 2 of Council Directive 76/207/EEC and Article 141 (4) EC, and the Court's view appears to be that it would need to be satisfied that the relevant measure was precisely targeted at compensating for specific professional disadvantage.
5.13 In its decision in Abrahamsson and Anderson v Fogelqvist (Case C-407/98), the Court found that a Swedish positive discrimination measure was not justified by the two articles referred to. In its decision, the Court said "Article 2 (1) and (4) of Directive 76/207 does not preclude a rule of national case-law under which a candidate belonging to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits, where the candidatures are subjected to an objective assessment which takes account of the specific personal situations of all the candidates."
It appears to me that a straightforward quota system would not comply with the obligations of objective assessment required to be compatible with Community law. The complainant's qualifications and experience
5.14 The complainant said that her experience and qualifications were at least equal to those of the four successful candidates. The respondent argued that all of the candidates were eligible for appointment with respect to their experience and qualifications, but asserted that the successful candidates had been selected by virtue of their performances at interview.
5.15 It is not enough just to demonstrate a difference upon which one can ground a complaint under the 1998 Act, such as the fact that there is a difference in gender between the successful candidates and the complainant. The law relating to the issue of a presumption of discrimination or the drawing of an inference of discrimination was considered by Quirke J in Davis v Dublin Institute of Technology (High Court, 2000, unreported). That case was an appeal to the High Court on a point of law from a Labour Court determination of a complaint of sex discrimination taken under the Employment Equality Act, 1977. The judge concluded
"In cases where discrimination on grounds of sex is alleged to have occurred contrary to the provisions of section 2 (a) of the 1977 Act the fact that there is a gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation...A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates "together with" a gender difference may give rise to such a requirement..."
Since no evidence was adduced which would lead to a finding of fact that the complainant was the best qualified candidate, I cannot find that she has established a prima facie case of discrimination.
Service credit for career breaks
5.16 The complainant asserted that the non-reckonability of career breaks was discriminatory against women, who were more likely to take career breaks for childcare purposes. Part-time workers, temporary staff and job-sharers are able to count full service as long as they reach a ceiling of 200 hours per year, but those on career break cannot count that time towards service. The union's statistics demonstrate that 86% of its members on career break are female. On this basis, nonreckonability of career breaks for service would be indirectly discriminatory against women unless it can be shown to be appropriate, necessary and justifiable by objective factors (section 22 (1) of the 1998 Act, as amended by SI 337/2001).
5.17 The issue of service credit was considered by the European Court of Justice in the case of Hill and Stapleton, referred to in 3.5 above, which dealt with service credit given to job-sharers for incremental purposes. The Court found that giving lesser incremental credit to job-sharers was indirectly discriminatory against females because they were more likely to job-share for childcare purposes, and the Court further found that there was no objective justification for the practice.
5.18 The Court noted that the Labour Court had taken the view "that jobsharing is in a unique category as it does not involve a break in service...The Labour Court is satisfied that a job-sharer can acquire the same experience as a full-time worker". In my opinion, the significant element in that case was that the complainants had ongoing service, in a job-sharing capacity. They had not absented themselves from their employments. Career breaks constitute a significantly different relationship with the employer. A person taking a career break enters into a voluntary suspension of his or her employment contract. As such, I am satisfied that the non reckonability of a career break as service is not unnecessary, inappropriate or objectively unjustifiable.
5.19 I note that it is the union's position that career breaks should count as service, and that this matter has been the subject of discussions with the Department. The documents supplied to me indicate that the union's position on career breaks is not confined to career breaks for childcare purposes, but encompasses all career breaks. This is a matter for industrial relations negotiations between the parties, but I cannot find that it constitutes prima facie evidence of discrimination on the ground of gender.
Reduced availability due to pregnancy, childbirth and childcare
5.20 The complainant made a general assertion regarding these issues, without explaining clearly either how she felt they affected her likelihood of gaining promotion, or indicating how she considered they should be dealt with. It is clear that she was given appropriate service credit for her absences on maternity leave, which covers the time periods relating to pregnancy and childbirth.
5.21 The childcare issue is slightly different. It may be argued that responsibility for childcare falls more on the shoulders of females, who thereby suffer a professional disadvantage in an employment scenario where extra curricular involvement may be taken into account. However, the complainant herself argued that her involvement in extra curricular activities was at least equal to that of the successful candidates. I am unable to find therefore that there is any evidence that the complainant's childcare responsibilities constituted a barrier to her promotional opportunities.
Gender balance of the Selection Committee
5.22 As previously noted, the members of the Selection Committee were all members of the Board of Management, appointed in an ex officio capacity. The complainant said that one Board member had previously absented himself from an interview situation, because of a relationship with a candidate, and she argued that the same practice could have been followed in this case to ensure gender balance.
5.23 While the Labour Court made it clear in Mitchell that gender imbalance on an interview board is potentially discriminatory, it also pointed out that it cannot lead in itself to a prima facie finding of discrimination in every case. In the circumstances of this case, the members of the Board of Management are nominated by the Trustees. While the nominee of the Bishop of Kilmore will necessarily be male, as long as a priest is nominated, the other two Trustees nominate the holders of particular posts. The current incumbents of the posts of Chief Executive of the VEC and Departmental Inspector are both male. I do not consider it feasible that the Department, for example, should only appoint female inspectors to ensure gender balance. I also do not consider it reasonable that one Board member should absent himself to ensure gender balance. This would have the effect that the currently constituted Board of Management could never sit as a Selection Committee, as it is required to do under the provisions of Circular Letter 15/97.
5.24 In relation to the composition of the Board, the respondent referred to ongoing negotiations to include teacher and parent representation and to facilitate gender balance on Boards of Management. I consider this to be a worthy mechanism, which should have the effect of ensuring a better balance of members from all walks of life, and I recommend that the parties to these discussions bring them to a speedy conclusion.
Lack of transparency in the marking scheme
5.25 The complainant submitted a complaint to an Arbitrator following the interview process. The Arbitrator found that the interview process had been flawed because the 20 marks available in the criterion "Experience of a professional nature and involvement in the school" had not been broken down among the several components of the category. The respondent asserted that it had acted in accordance with the instructions provided to it, and that it was not obliged at that time to provide the breakdown referred to.
5.26 It will be seen from the extract from Circular Letter 32/00 (attached as an Appendix to this Decision) that the components listed for the 20-mark criterion are effectively divided into two sub sets, described as In-school experience and Out of school experience. However, I also note that the listings within each sub set are introduced as examples, with the three items listed in the first sub set being examples of In-school experience, and the five listed in the second sub set being examples of Out of school experience. The terminology used demonstrates to me that the eight items listed are neither mandatory nor exhaustive. Transparency in marking schemes for interviews should be achieved by interview boards, but in this situation it is difficult to determine how the Selection Committee could specifically allocate 20 marks between eight items, which may not be of equal value.
5.27 I recommend that the Department, the union and other interested parties discuss the overall marking scheme for promotion competitions, with a view to agreeing objective and quantifiable criteria against which candidates can be evaluated. In this particular instance however, I am satisfied that the Selection Committee was not obliged to subdivide the 20-mark criterion, and that its failure to do so did not constitute prima facie evidence of discrimination.
5.28 In Dublin Institute of Technology and a Worker (DEE994), the Labour Court said "It is not the responsibility of the Equality Officer or this court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the Board." In this case, the successful candidates had significant and relevant experience. I cannot find that the complainant has adduced evidence that her gender was a factor in the fact that she was unsuccessful.
6.1 Based on the foregoing, I find that the Board of Management of St Clare's Comprehensive School did not discriminate against Maureen Glennon on the ground of gender, contrary to the provisions of the Employment Equality Act, 1998, when she was unsuccessful in a promotional competition to the post of Assistant Principal. I further find that the Minister for Education and Science was not a correct respondent in this claim.
16 July 2003
Annex to Circular Letter 32/00
1. Capacity of the applicant to meet the needs of the school plus the case made at interview (50 marks):
(a) The Selection Committee will assess the ability of the candidate to perform a range of duties.
(b) In evaluating the capacity of the applicant to meet the needs of the school, the performance of the candidate to date may be assessed; the candidate may present evidence or record of such performance.
c) In demonstrating his/her ability to meet the needs of the school, the applicant may propose what he/she perceives to be the needs of the school in the context of the post.
(d) The Selection Committee may seek to assess the reaction of an applicant to certain situations which might reasonably be expected to be encountered in the performance of the duties associated with the post.
(e) Case made at interview would include the general professionalism of the candidate as presented at interview. It would include the presentation of the candidate himself/herself, the presentation of the application form/CV etc.
2. Service to the school (30 marks):
(a) The most senior applicant shall receive maximum marks - 30.
Other candidates shall receive marks pro-rata eg
Candidate A = 20 years previous experience = 30 marks
Candidate B = 10 years previous experience = 15 marks
Candidate C = 5 years previous experience = 7.5 marks
(b) The seniority of non-post holders shall be determined at the beginning of each school year by reference to qualified service in a permanent, temporary, substitute, eligible part-time or part-time capacity in the school as a post-primary teacher.
(c) A maximum of one year's credit may be granted in respect of any one year. Seniority will be credited in full years only and will be computed as follows:
(i) each full year of permanent service will reckon as one year for seniority purposes;
(ii) permanent, temporary, substitute, eligible part-time or parttime service for a minimum of 22 school weeks in any one school year will reckon as a full year for seniority purposes;
(iii) permanent, temporary, substitute, eligible part-time or parttime service which, collectively or separately, amount to more than 200 hours in any school year will reckon as one year for seniority purposes;
(iv) service in any one school year which is less than 22 school weeks will not be reckonable;
(v) service in any one school year which is less than 200 hours will not be reckonable.
3. Experience of a professional nature in the field of education and involvement in the school (20 marks):
In-school experience eg
(a) contribution of the applicant to the school
(b) experience as a post holder in a temporary or permanent capacity
(c) experience as a co-ordinator of a school project, Out of school experience eg
(a) professional development (in-service etc)
(b) subject associations
(c) professional associations
(d) work experience
(e) course committee membership