CARROLL(REPRESENTED BY TUI) AND MONAGHAN VOCATIONAL EDUCATION COMMITTEE
This dispute involves a claim by Ms. Mary Carroll that she was discriminated against by Monaghan Vocational Committee on grounds of age, within the meaning of section 6(2)(f) 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 Special Duties Teacher at Beech Hill College, following interviews held on 11 January, 2001.
2.1 The complainant applied for one of six Special Duties Teacher Posts in Beech Hill College in September, 2000 and was interviewed for the position on 11 January, 2001. She was unsuccessful and the posts were awarded to candidates who were all younger than her. The complainant contends she was better qualified and had longer service than any of the successful candidates and alleges she was discriminated against on grounds of age. She further alleges that a discriminatory practice operates in favour of younger candidates in respect of promotion to Middle 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. 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 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 Special Duties Teacher Post (SDT Post) in Beech Hill College and was interviewed on 11 January, 2001. Twelve candidates were interviewed for the six posts available at that time. The complainant was unsuccessful and she contends that the posts were awarded to candidates who were all younger than her. 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 superior academic qualifications. 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, 2000 to December, 2001) 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 age.
3.2 The complainant submits, on the basis of data supplied by the respondent, that fifty- three SDT Posts across Monaghan VEC were filled by way of competition between 993/94 and 2000/01. During this period 81% of those posts were filled by candidates aged 40 years or under and a further 14% were aged between 40-48 years. Only 6% of appointees during the period were aged 48 years or over - the age the complainant was at the time of the competition. As regards Beech Hill College, the complainant submits that of the current complement of staff at the College at SDT level or above, 88% of them were appointed to SDT posts at 40 years of age or under. The complainant argues that these statistics support her contention there is a bias in favour of younger candidates at this level within the VEC. The complainant further submits that the material furnished by the respondent in respect of the competition which is the subject of this complaint shows, in general, that as years of service increase the marks awarded to candidates in respect of the other assessment criteria - capacity to meet the needs of the school and experience of a professional nature in the field of education and involvement in the school - decrease.
3.3 In further support of her contention that a discriminatory practice premised on age exists in the VEC, the complainant refers to a number of documents issued by management at Beech Hill College and the VEC which she contends, provide an image that age is a negative factor and a potential problem for the VEC and its schools. She submits that the ethos portrayed in these documents is bound to have an influence on a Selection Board where one of the three members is a member of the VEC and another is the Chief Executive Officer of the VEC.
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 other candidates more suitable for the posts 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 age.
4.2 The respondent states that credit for service to the scheme was computed in accordancewith the relevant Departmental Circular (44/00) and that the terms of the Circular were applied equally to all 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 service contained 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 younger candidates operated by Interview Panels, either generally across Monaghan VEC or at Beech Hill in particular. It submits that even if the ratio of candidates under the age of 40 years who are promoted to SDT posts stands at 81%, this does not prove discrimination as the age distribution of all candidates is not taken into account for comparison purposes. It submits that the fact is the majority of staff across the VEC and in Beech Hill College who apply for SDT posts are under the age of 40 years - relatively fewer senior staff apply. Consequently, on a proportionate basis a greater number of younger teachers are successful. The respondent rejects the complainant's assertion that as years of service increase the marks awarded to candidates in respect of the other assessment criteria decrease. It states that the Interview Panel awarded mark under the two criteria directly under its control, purely based on performance at interview.
4.5 The respondent argues that the documentation referred to by the complainant in support of her contention that a discriminatory practice premised on age exists in the VEC, is taken out of context. It states the first example cited emerged from a dispute between a senior and junior teacher in 1998 and was an attempt by the Chief Executive Officer of the VEC to broker resolution of the dispute, in circumstances where there were difficulties facing new teachers in a particular working environment. The respondent states that the second example cited should be assessed against the backdrop of restructuring in the VEC sector generally in 1998 under the Programme for Competitiveness and Work and statistics were prepared at the request of the Department of Education and Science which covered the age profile of staff in the VEC to inform its planning process for the following decade. The final example cited - the Beech Hill College Development Plan 2001-2004 - was also part of a strategic planning process. The respondent rejected the assertion that age was perceived as a problem, or as a negative factor, within the VEC.
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 age, within the meaning of section 6(2)(f) 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 Special Duties Teacher at Beech Hill College following interviews held in January, 2001 and (ii) whether or not a culture exists in Monaghan VEC and in particular Beech Hill College, that is biased in favour of younger candidates for middle management 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, the following:
"(f) that they are of different ages ........(in this Act referred to as'the age 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 now established caselaw of this Tribunal and the Labour Court1 that in all cases of alleged discrimination the complainant must, in the first instance, establish primary facts from which it can be inferred that s/he suffered discriminatory treatment. When such a prima facie case has been established the onus shifts to the respondent to rebut the inference of discrimination. This approach has its origins in issues of gender discrimination and is now part of Irish law with the coming into force of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20012.
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 states that the complainant's service as an AEO was not counted as reckonable service in respect of the 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 and it accepts that this may have been the case. 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 twelve 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 the complainant on grounds of age.
5.5 The complainant states that the interviews were delayed from September, 2000 to January, 2001 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. Whilst I accept that the complainant may have been adversely affected by the application of Circular 44/00 to the competition, in that her period of service as an AEO was excluded, I cannot accept that the delay constitutes unlawful discrimination of her on grounds of age as ultimately the correct Circular (44/00) was applied equally to all 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 six successful 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 those candidates. In the course of this process I noted in particular that she held an SDT post (or equivalent) on an acting basis on two occasions, September, 1999 - October, 2000 and October, 1994 - June, 1995.
5.7 I have also examined the marks awarded to all twelve candidates in the competition. These data shows that when the marks under the direct control of the Interview Panel are combined - capacity to meet the needs of the school (50 marks) and experience of a professional nature in the field of education and involvement in the school (20 marks) - the four candidates with the longest periods of service to the VEC were awarded the four lowest combined scores in respect of those criteria. The data also shows that the highest mark awarded to a candidate with more than 10 years' service (aged between 37 years and 48 years) in respect of capacity to meet the school was 40 marks whereas the lowest mark awarded to a candidate with less than 10 years' service (aged between 24 years and 29 years) was 46 marks (to a candidate with 3 years service ) and one candidate was awarded the full 50 marks in this category (who had 6 years' service). A similar pattern exists in respect of the 20 marks available for the second category under the Interview Panel's control - experience of a professional nature in the field of education and involvement in the school.
5.8 When this data is applied in respect of the complainant (who had 19 years' service to the Scheme) it shows she was awarded 15 marks under the category experience of a professional nature in the field of education and involvement in the school, whereas candidates with three years' service were awarded 17-19 marks and one candidate with 6 years' service was awarded the full 20 marks in this category. As regards the second criterion under the control of the Interview Panel - capacity to meet the needs of the school - I note that the complainant (who had 11 years' teaching service in the school) was awarded 36 marks whereas candidates with three years' service were awarded 46 - 49 marks and one candidate with 6 years' service was awarded the full 50 marks in this category. Based on the information in the candidates' application forms, I find it difficult to reconcile these marks, given that one would expect that the length of service of a candidate will, to a large extent, determine his/her teaching experience etc. I also note that all of the successful candidates were younger than the complainant, the difference ranging between 8- 24 years. Based on my comments above, I am satisfied that the complainant has established facts from which an inference of unlawful discrimination can be raised and she has discharged the evidential burden required of her. The burden of proof therefore shifts to the respondent to rebut the inference of discrimination raised.
5.9 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 age. I am satisfied that (i) the Interview Panel was convened and (ii) the candidates were assessed on pre-determined criteria, in accordance with the Department of Education and Science Circular 43/00 - which governed the competition. A respondent must show that the entire selection process was fair and equitable if it is to rebut an inference of discrimination. One way to achieve this is to operate a process which is open and transparent at every stage and to retain records which can support a decision to select one candidate over another. The respondent in the instant case has repeatedly stated during the course of this investigation that "on the day the most meritorious candidates were selected by the Panel based on performance at interview". It is therefore incumbent on the respondent to produce evidence to support such a statement. However, it has failed to adduce any such evidence. It stated at the hearing that at the time of the interview it was not "then customary or required to keep Selection Board Members' notes" although this practice changed subsequently where a Secretary is appointed to each Board and s/he keeps certain records. The issue of retaining notes/records of interview has been raised previously on several occasions by both this Tribunal and the Labour Court, as such notes are of considerable assistance when investigating allegations such as the complainant's. In light of the foregoing I am not satisfied that the respondent has rebutted the inference of discrimination raised by the complainant and consequently I find that it discriminated against her on grounds of age contrary to the Employment Equality Act, 1998.
5.10 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 younger candidates for middle management positions. I have examined the statistics submitted by the complainant and I am satisfied that during the period 1993/94 and 2000/2001 95% of appointees to SDT posts across the VEC were under the age of 48 years at the time of appointment. However, I cannot accept that these statistics of themselves give rise to an inference of discrimination over the years as I was not in a position to examine the age profiles(s) of either the candidates for those competitions, or of staff who were eligible and did not compete. The statistics furnished by the complainant in relation to Beech Hill College refer to appointments to the posts at SDT level which in some cases stretch back twenty years from January, 2001 and cover several individual competitions over that period, many of which took place before the Employment Equality Act, 1998 came into force. I consider it more appropriate to examine this data in respect of appointments which took place after discrimination on grounds of age became unlawful - 18 October, 1999. From that data provided I note that only twenty appointments to SDT have been made since then and whilst all appointees have been aged 40 years or under, I cannot accept that these statistics of themselves give rise to an inference of discrimination as again I was not in a position to examine the age profiles(s) of the candidates for those competitions. In light of the foregoing I find, on balance, that the complainant has failed to establish a prima facie case that the respondent operated a practice that was biased against older candidates in respect of posts at SDT level, either at Beech Hill College or across Monaghan VEC generally. Finally, I am prepared to accept the respondent's arguments and reasons for the existence of certain documentation cited by the complainant as a source of age discrimination in the VEC.
6.1 I find that:
(i) the respondent discriminated against the complainant in respect of the selection process for promotion to the post of Special Duties Teacher at Beech Hill College following interviews held in January, 2001;
(ii) 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 younger candidates for posts at Special Duties Teacher level.
6.2 In assessing the level of redress in this case I am satisfied that it is appropriate to place the complainant in the position she would have enjoyed had discrimination not occurred. I am also satisfied that the complainant would have secured one of the SDT posts at issue had the discrimination not taken place. I understand that subsequent to January, 2001 she was appointed to an SDT post at Beech Hill College. I therefore order, in accordance with section 82 of the Act:
(i) that the complainant's appointment is backdated to the same date as those appointed to SDT posts following interviews in January, 2001 and that she is paid the full necessary adjustment in salary and any other benefits that applied to the post from that date until the date she was actually appointed:
(ii) that the respondent pay the complainant €10,000 by way of compensation for the distress suffered by her as a result of the discrimination;
(iii) that the respondent ensure notes are made in respect of all Interviews organised by it in future and that these notes are retained for a minimum period of twelve months from the date of the competition..
5 February, 2004
1Revenue Commissioners v O'Mahony & Othrs EDA 033 and Flexo Computer Stationery Ltd v Coulter ED/03/10
2S.I. 337 of 2001