FOSBERRY AND COUNTY ROSCOMMON VEC
This dispute involves a claim by Ms. Bernadette Fosberry that she was discriminated against by County Roscommon Vocational Education Committee (VEC) on grounds of gender, within the meaning of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of appointment to the post of Acting Supervisory Teacher at the Education Unit, Castlerea Prison, following interview in August, 2002.
2.1 The complainant was employed as a Teacher in the Education Unit, Castlerea Prison, from 1998. In August, 2002 she was interviewed for the post of Acting Supervisory Teacher at the Education Unit, Castlerea Prison. She was unsuccessful and the only other candidate interviewed (a male) was appointed to the post. The complainant contends that she had greater relevant experience for the post than the appointee and submits that she was discriminated against on the basis of her gender.
2.2 The complainant referred a complaint to the Office of the Director of Equality Investigations (the Equality Tribunal) on 3 March, 2003. In accordance with her powers under the Act the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer on 16 September, 2003 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 18 February, 2004. A number of issues emerged at the hearing which required further clarification and gave rise to correspondence subsequent to the hearing. The Equality Officer received the final piece of information in respect of the complaint on 19 March, 2004.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant commenced as a teacher in the Education Unit in 1998 where she teaches the subjects of Maths and Information Technology (IT). There are four staff in the Unit, including the Supervising Teacher and the day to day running of the Unit is very much a team effort. The complainant states that she has been involved with a lot of activities in the Unit during her time there and is familiar with the routine day to day operation of the Unit. She adds that during this time she had overall responsibility for IT equipment in the Unit as well as staff training and she regularly assisted the Acting Supervising Teacher with the preparation and administration of timesheets and timetables. Her current post requires her to operate within a budgetary framework. She was Head of the Physics Department in a Grammar School in the UK between 1980 and 1984 which involved staff and budgetary management and has also run her own business in the private sector.
3.2 The complainant states that although she found the interview for the post to be tough she was generally satisfied with it. She was not asked any questions which she considered to be discriminatory however, she formed the impression that the Interview Panel considered her academic qualifications to be inferior as they were obtained in the UK. In summary, the complainant contends that her experience and general suitability for the post is superior to that of the successful candidate and her failure to secure the post was based on the fact that she was female.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that she was discriminated gainst on grounds of her gender. It states that in keeping with its common policy the post (which was a temporary one due to the absence of the Permanent Supervising Teacher on maternity leave) was restricted to personnel serving in the Unit and it was advertised within that area. Two candidates applied, the complainant and Mr. A and interviews were conducted on 26 August, 2002. The respondent adds that candidates were assessed cross the three criteria which it uses for all posts at Principal and Deputy Principal level (the post is equivalent to that of Principal in the VEC sector and its central task is the day to day management of the Unit) as follows:
Qualifications - 25 Marks;
Relevant Experience - 25 Marks; and
General Suitability for the Post - 50 Marks.
The composition of the Interview Panel was in accordance with Department of Education and Science Circular 43/00 and the respondent's Chief Executive Officer met with the Panel members before the interview to brief them on the requirements of the job etc and to give them its General
Guidelines for Interview Panels for posts at Principal level.
4.2 The Chairperson of the Interview Panel attended the hearing and confirms that the meeting referred to above took place. He states that the Panel itself decided what areas each would cover and both candidates were asked similar questions. In addition to areas covered by the candidates' CV's each was questioned on areas concerning the prison education system (for about twenty minutes) and it was his recollection that the complainant's response in respect of developments in that area was poor. Whilst some notes were taken at interview they were not now in existence. The Chairperson adds that after debate the Panel considered that Mr. A had (i) demonstrated a more in depth knowledge of developments in the area; (ii) possessed a wider range of relevant experience outside of the Unit and (iii) had demonstrated better interpersonal skills in his responses during the course of the Interview. The Panel decided on the basis of the candidates' performance at interview to recommend Mr. A for appointment. The Chairperson states that at the end of the interview he gave both candidates an opportunity to furnish additional information and the complainant had not done so.
5. CONCLUSIONS OF THE EQUALITY OFFICER.
5.1 The matter for consideration by me is whether or not Roscommon VEC discriminated against Ms. Fosberry on grounds of gender in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of appointment to the post of Acting Supervisory Teacher at the Education Unit, Castlerea Prison, following interview in August, 2002. In reaching my decisions I have taken into account all of the submission, both oral and written, made to me by the parties.
5.2 The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 20011 places the onus on a complainant to present, in the first instance, facts from which it may be presumed that discrimination took place. When a complainant has discharged this obligation the burden shifts to the respondent to rebut the inference of discrimination raised. I have examined Department of Education and Science Circular 35/97 which governs the Management Structure for Teachers Employed by VEC's and assigned to Education Units in Prisons and note that paragraph 4.1 of the Circular states that "All Supervising Teachers will be responsible for the day to day management of their Units". In the course of the hearing the respondent's Chief Executive Officer elaborated on this stating that it "included responsibility for staff and budgetary matters, liaising with prison authorities, VEC personnel and prisoners". I have also examined the complainant's CV and compared it with that of the appointee and I am satisfied that her teaching and management experience, both in the employment of the respondent (from 1998) and prior to that date (as regards running her own business and being Head of the Physics Department at a Grammar School) are superior to those of the appointee. In Wallace and
the South Eastern Health Board2 the Northern Ireland Court of Appeal 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 complainant has established a prima facie case of discrimination and consequently, the burden of proof shifts to the respondent to demonstrate that the reasons for appointing the successful male candidate were for objective factors unconnected with gender.
5.3 The respondent states that the candidates were assessed across the three criteria which it uses for all posts at Principal and Deputy Principal as follows:
Qualifications - 25 Marks;
Relevant Experience - 25 Marks; and
General Suitability for the Post - 50 Marks.
I note the complainant's comment that during the course of the interview she felt that the Interview Panel considered her academic qualifications to be inferior to those of the appointee as she had acquired her qualifications in the UK. Both the complainant and the appointee were awarded the same score under the category Qualifications. These scores are consistent with the marking system operated by the respondent in respect of Qualifications, a copy of which was submitted to the Equality Officer. Consequently, I am satisfied that the complainant was not treated less favourably in respect of that category. The complainant was awarded a higher mark than the appointee under the category Relevant Experience, which is consistent with my conclusion that she had greater relevant experience. The scores awarded in respect of the final category - General Suitability for the Post - are therefore central to the matter in hand.
5.4 The respondent furnished the Equality Officer with a copy of the General Guidelines for Interview Panels in Appointments to Principal etc. which it issued to the Interview Panel in the current case. These guidelines contain the following under the category General Suitability for the Post - "In assessing general suitability Board Members may consider the candidate's motivation, disposition, flexibility, attainments, knowledge, communicative skills, special interests, interpersonal and social skills, general interests and ability to work effectively as a team leader.". Whilst the factors mentioned may be relevant in assessing a candidate's general suitability for a post, they enable the Interview Panel to exercise a significant degree of subjectivity in their evaluation. In the instant case these potentially subjective factors account for half of the total marks available to candidates. The failure of the Interview Panel to retain any notes as to how it arrived at the scores awarded to the candidates under this category makes it extremely difficult to discharge the onus of proof placed upon the respondent that the selection process was not discriminatory. This point was examined by the Labour Court recently in South Eastern Health Board and Brigid Burke3. However, the absence of such notes does not, of itself, automatically imply that discrimination has taken place, although it may form part of a series of factors, the cumulative affect of which would be detrimental to a respondent's case.
5.5 In Dublin Institute of Technology and A Worker4 the Labour Court stated that "It is not the responsibility of an 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 .... of the complainant or the appointee influenced the decision of the Board.". In discharging my role as outlined by the Court in the instant case I consider the following factors to be relevant:
- The Chairperson of the Interview Panel stated at the hearing that the marks awarded to the candidates reflected their respective performance at interview. In particular he referred to the fact that the complainant's response in respect of developments in the prison education system was poor. This assertion was not disputed by the complainant. Given the nature of the post one would expect candidates to be able to demonstrate a significant degree of knowledge in that area at interview and a failure to do so could well result in a low score under that category.
- The Chairperson also referred to the appointee's wider range of relevant experience outside of the Unit and his superior display of interpersonal skills to those of the complainant. However, in light of my conclusion at paragraph 5.2 above in respect of the complainant's experience and in the absence of interview notes to demonstrate the contrary, I cannot accept the respondent's comments in this regard.
- I note the complainant's comment that although she found the interview tough she was generally satisfied with it, save for the issue of her qualifications which I have dealt with at paragraph 5.3 above. In addition, I note her comment that she did not consider any of the questions to be discriminatory.
- The Interview Panel was convened in accordance with the relevant Department of Education and Science Circular and had regard to gender balance in its composition. The Chief Executive Officer met with Panel members before the interviews to brief them on the responsibilities etc. The candidates were assessed over three pre-determined criteria which were normally used by the respondent for posts at that level. In the light of the foregoing I am satisfied, on balance, that the decision of the Interview Panel was based on factors which are unconnected with the gender of the candidates and it has therefore discharged the burden of proof required of it. Before leaving this matter however, I would recommend to the respondent that it immediately adopt the practice (if it has not already done so) of ensuring that notes are taken at interview which indicate how the Panel reached the decision(s) it did and that it should retain these notes for a minimum of twelve months following the interview. Material of this nature is of great assistance to the respondent in demonstrating to this Tribunal and the Labour Court that its selection process was not tainted with bias.
6. DECISION OF THE EQUALITY OFFICER
I find that Roscommon VEC did not discriminate against Ms. Fosberry on grounds of gender in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, in respect of appointment to the post of Acting Supervisory Teacher at the Education Unit, Castlerea Prison, following interview in August, 2002.
15 June, 2004
1 S.I. 337 of 2001
2  IRLR 193
3 EDA041, 12 January, 2004
4 DEE994 of 2 November, 1999