Ms Elayne McDermott(Represented by A.S.T.I.) vs Sligo Grammar School(Represented by I.B.E.C.)
The dispute concerns a complaint that the Sligo Grammar School discriminated against the complainant on the grounds of her gender, marital status, family status and religion contrary to the provisions of the Employment Equality Act, 1998 in the filling of a full time teaching position at the School.
2.1 The complainant is employed as a part-time teacher at the Sligo Grammar School. The school filled a full time Physical Education (PE) teacher position by the appointment of an external candidate and the complainant believes that she was discriminated against on the grounds of her gender, marital status, family status and religion by virtue of the appointment.
2.2 The ASTI referred a complaint to the Director on behalf of the complainant on 24th January, 2002. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, for investigation,
hearing and decision on 25th July, 2002 and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were sought from both parties and a hearing of the complaint was held on 19th September, 2003. Subsequent to the hearing the respondent furnished additional material relating to previous appointments at the school and further correspondence ensued up to 20th October, 2003.
3. SUMMARY OF THE CLAIMANT'S CASE
3.1 The complainant commenced work as a part-time Physical Education teacher with the Sligo Grammar School in 1997 having previously held a full time position at the school in the school year 1992-1993. She understood from what she was told by the Headmaster at the time of her appointment in 1997 that she would be in a favorable position for appointment to a full time vacancy when one arose. When a vacancy did arise in May 2001 the school advertised the vacancy in a national newspaper. The complainant was on maternity leave at the time. She applied for the position and was interviewed but was unsuccessful and an external male candidate was appointed.
3.2 The complainant believes that her candidature for the full time position was not considered seriously by the school because she was a mother to a young infant and that her Roman Catholic religion was not the preferred denomination given that the school is Church of Ireland managed. The complainant states that at the time of the competition she had a total of five years satisfactory teaching experience with the school. The complainant questions the criteria which she was told were used to select the successful candidate i.e. performance at interview, experience and qualifications. The complainant suggests in her submission that the appointee's competence in Rugby was a factor in his appointment. The complainant, who is an international hockey player, states that she predominantly coached hockey and refers in her submission to the success of the school's 1st team, her loyalty to the school and the extra hours she put in at weekends and at Christmas. She also refers to the surprise of her fellow professionals when they learned of her failure to be appointed to the full time position. The complainant's qualifications and experience are set out at 4.2 below. She was also studying at the time of the competition with the Open University for an MA in Education (Special Needs/Inclusive Education).
3.3 The complainant believes that she was not given due credit at interview for her commitment and contribution to the school. She also believes that the interview board lacked the independence of an external member and lacked transparency. The complainant suggests that the Principal was evasive and unhelpful when she sought information after the interviews.
3.4 The complainant in her submission states that when she received the Headmaster's letter of 24th July, 2001 stating that she was unsuccessful in the competition she sought to speak to the Headmaster but he did not contact her until the following day and advised her that she should not take the appointment of another candidate as an adverse comment on her. She subsequently invoked the ASTI/JMB (Joint Management Board) Grievance Procedure for Voluntary Secondary Schools and met the Headmaster on 23rd August, 2001. She invoked the second stage by way of letter on 29th August, 2001 to the chairperson of the Board of Management. The successful candidate was appointed to the disputed post on 1st September, 2001, the date which the complainant regards as the most recent act of discrimination. She continued to follow the Grievance Procedure until she was informed by the management side that the JMB, in a letter of 30th January, 2002, stated that its legal advice was that the Grievance Procedure being followed was not the appropriate forum in which Ms McDermott's complaint should be addressed as a new contract was being sought.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent states in the first instance that the complaint was referred more than six months after the alleged act of discrimination and is out of time. Without prejudice to its position in this regard, the respondent argues that the complainant has failed to adduce any prima evidence that she was discriminated against on any of the grounds listed and contends that the successful candidate was appointed because of his superior qualifications and performance at interview.
4.2 The respondent states that there were eight applicants for the post and that based on their qualifications and experience four were called for interview of whom three attended for interview. The interview board comprised the Principal and Deputy Principal. The qualifications and experience of the successful candidate and the complainant are summarised below :
Masters Degree in Science (Leisure, Exercise and Sports Science)
B.Ed.(Hons) in Education Management
B.Ed. (Hons) in Hotel and Tourism Management
Coaching qualifications in Hockey, Soccer, Gaelic Football and Archery
Course tutor at a third level college from 1983 to time of competition
Head of PE Department at a secondary school from 1979 to 1983
PE Teacher secondary school 1978 to 1979
B.A. (Hons) in Sports Studies
Tutor - National Coaching and Training Centre
Worked as P.E. Teacher and more recently as part time PE teacher with Irish and
Geography in Sligo Grammar School.
Tutor at Castlereagh Prison for one summer
Managed an Adventure Centre for two years
PE Teacher from September 1988 to June 1995
4.3 The respondent states that of 44 teaching staff at the school 24 are female and adds that the previous incumbent in the disputed full time PE teacher post was female and held the post for 23 years. The school rejects any suggestion that it discriminates on the ground of gender in its relations with teachers. Seventy five per cent of teaching staff are married and the appointee on this occasion is married with children so clearly it could not be held to discriminate on the marital or family status grounds. The school also states that it would not be aware at interview stage of the marital or family status of candidates.
4.4 In relation to the allegation of discrimination on the ground of religion, the school states that 75% of teaching staff are not members of the Church of Ireland. The school states that the job advertisement was place in the Irish Independent which is predominantly sold in the Republic of Ireland where the majority of the population would not be members of the Church of Ireland. The school rejects the allegation that it favored the appointee because of his Protestant religion.
4.5 Regarding the conduct of the interviews, the respondent states that candidates were questioned in relation to their academic qualifications and PE teaching experience, their attitude to discipline in schools and how to motivate children to take part in physical activity. Candidates were specifically asked what type of programme they would put in place to maximise students' participation in PE activities. The respondent states that the Deputy Principal recorded in his notes that the complainant had "no clear plan on how to motivate modern youth into PE activities" while the appointee was "clear in his mind what is needed to motivate modern pupils with other distractions". The respondent states that the complainant makes no suggestion that any discriminatory questions were asked at interview.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her gender, marital status, family status or religion in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to Section 8 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. I have considered the statement by the respondent that the referral of the complaint was out of time. I note that the job interview took place on 22nd June, 2001 and that the complainant was notified by letter on 24th July, 2001 that she was unsuccessful in the competition. The complaint was referred to the Director on 24th January, 2002 and in her referral the complainant also refers to the most recent act of discrimination as the 1st September, 2001 i.e. the date on which the successful candidate was appointed. I am of the view that the substantive alleged discriminatory act took place on the date of the interview and that the complainant was put on notice of the interview board's decision on 24th July, 2001. When the respondent proceeded to appoint the successful candidate it gave effect to the earlier decision of the interview board and I do not consider the appointment constituted a further act of discrimination. I must conclude therefore that the date of the notification of the decision to the complainant was the most recent act of discrimination for the purposes of the 1998 Act. The referral of the complaint would therefore have to have been received by the Director no later than 23rd January, 2002 (i.e. see Equality Officer Decision in Gillen & Department of Health and Children1 regarding the interpretation and application of the six month limit). As the referral was made on 24th January, 2002 and as the complainant has not sought a direction from the Director that exceptional circumstances prevented the complaint being referred within the six month time limit (1998 Act, Section 77(6)) I must find that the referral was out of time. I am aware that between the time of the notification of the result of the competition on 24th July, 2001 and the actual appointment of the successful candidate on 1st September, 2001, the complainant was engaged in efforts to resolve the matter through the established Grievance Procedure for Voluntary Secondary Schools and that she may have had reason to believe that there remained a possibility that the decision of the interview board would be reconsidered and that referral of her complaint to another forum would be inappropriate. I have heard the evidence in this case concerning the selection process and for the avoidance of doubt I have decided the substantive issue below.
5.2 The principle of burden of proof as set out in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (SI 337 of 2001) is well established in equality caselaw in relation to gender complaints and has been similarly applied by Equality Officers in non-gender complaints. The Labour Court in Flexo Computer Stationery Ltd v Kevin Coulter in relation to the burden of proof in non-gender cases stated :
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (SI no 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v Southern Health Board  ELR 201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If the two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."
It is for the complainant in the first instance to establish prima facie evidence from which it may be presumed that discrimination has taken place.
5.3 I note in particular that the successful candidate holds a Masters Degree in Leisure, Exercise and Sport Science in addition to other third level qualifications and has been either teaching directly or employed as Head of a PE Department since 1978. The complainant by comparison holds a Primary Degree and has held a number of positions, either directly or indirectly related to physical education since 1988. While the complainant is clearly a well qualified and highly respected PE Teacher with an international record in hockey and in the process of completing a Masters Degree, I am satisfied that the appointee's academic qualifications and experience at the time of the competition were such that the reasonable conclusion would be that he was the better qualified of the two for the particular vacancy. I note from notes of the interviews supplied by the respondent that the appointee is recorded as having presented a clearer plan of how he would motivate modern pupils. I am satisfied on balance that the complainant has failed to adduce prima facie evidence that her failure to be appointed was for discriminatory reasons. In relation to the grounds of marital and family status, the appointee and the complainant are of the same relevant characteristics and I could see no basis for pursuit of a complaint on these grounds.
6.1 On the basis of the foregoing, I find that
- the referral of the complaint by Ms Mc Dermott against Sligo Grammar School on 24th January, 2002 was out of time
- for the avoidance of doubt, Sligo Grammar School Ltd did not discriminate against the complainant on the grounds of her gender, her marital or her family status in terms of Section 6(2) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act in the conduct of the competition to appoint a full time teacher.
21 September, 2004
1Gillen & Department of Health and Children DEC-E-2003-035