Eibhlin Nic Fhlannchadha (represented by Hayes Solicitors) -v- Colaiste Mhuire (represented by Micheal O' Scanaill B.L., instructed by O' Scanaill & Co Solicitors)
1.1 The case concerns a claim by Ms. Eibhlin Nic Fhlannchadha that Colaiste Mhuire discriminated against her on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to a competition for promotion to Acting Deputy Principal.
2.1 The complainant applied for the position of Acting Deputy Principal and was unsuccessful in her interview. The successful candidate was male. She submits that she had better qualifications and more relevant experience than the successful male candidate. In particular, she was the most senior applicant and the most senior teacher in the school and the successful male candidate had no in-house management experience. The complainant believes that she has been discriminated against on the grounds of gender. The respondent denies the allegation of discrimination and submits that each candidate was assessed and marked according to objective and gender neutral criteria. It further submits that the gender of the complainant was not considered in the selection process and it did not influence the decision of the selection committee.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 2 July 2003. On 26 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, 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. A submission was received from the complainant on 8 March 2004 and from the respondent on 23 April 2004. A joint hearing of the claim was held on 28 July 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant applied for the position of Acting Deputy Principal and was unsuccessful in her interview. The successful candidate was male. She submits that she had better qualifications and more relevant experience than the successful male candidate. In particular, she was the most senior applicant and the most senior teacher in the school and the successful male candidate had no in-house management experience. The complainant had 31 years teaching experience while the successful male candidate had 19 years teaching experience. The complainant believes that she has been discriminated against on the grounds of gender.
3.2 The vacancy for Deputy Principal arose as a result of leave of absence by the Principal. The position of Acting Principal was filled by the then Deputy Principal. The current and previous principal are both male. The complainant was the most senior applicant in the school and was acting as Assistant Principal at the time. It was agreed by the Board of Management of the school that the vacant post of Deputy Principal would not be filled by the next most senior person who was the complainant. Instead the vacancy was open to teachers within the school.
3.3 The Department of Education and Science Circular 4/98, states "The Deputy Principal acts as the Principal in the absence of the Principal; and assists the Principal in the fulfilment of the Principal's role. This does not confer automatic right of succession to the Principal or to any "acting" Principalships arising." Notwithstanding the Circular, the Board of Management decided that the Deputy Principal would become the Acting Principal in the absence of the Principal. The Board of Management further decided that the person in the next senior post (i.e. the complainant), who could fulfil the time requirement of one and a half years would not automatically take up acting in a "Deputy Principal" role. The complainant believes there to be a manifest inconsistency with regard to the application of the respondent's selection rules.
3.4 The respondent's solicitors stated that candidates were questioned in five areas namely
Qualifications and experience
Administration and organisation
The education system
The relationship between the Principal and Deputy Principal and
School ethos and philosophy.
The complainant submits that she was not questioned on her qualifications and experience relative to the post of Deputy Principal. She submits that she was asked one question on administration and organisation. She submits that she was not asked about the education system and was only asked one question on the relationship between the Principal and Deputy Principal and one question on the school ethos. The complainant submits that at the start of the interview, the Chairperson began by saying that they had no set questions and would work them out as they went along. She submits that after two members of the selection committee had questioned her, the Chairperson then asked her to tell them about herself. The complainant submits that the respondent's selection committee did not conduct the interview in accordance with the principles set out in their solicitor's letter of 26 February 2003.
3.5 The complainant submits that the marking scheme used by the respondent is not consistent with the marking scheme recommended by the Articles of Management for Catholic Secondary schools and in the Annex to the Department of Education and Science Circular 32/00. She submits that both of the schemes specify that candidates should be marked as follows:
- Capacity of the applicant to meet the needs of the school plus 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.
The complainant submits that had the criteria been used, she would have been the successful applicant due to her years of experience within the school.
3.6 In relation to relevant experience of the candidates and as previously stated, the complainant was the most experienced candidate for the post of Acting Deputy Principal. Since 1987, the complainant has been mathematical advisor to An Gum which is the Government Publications Department which deals with the provision of text books through the medium of Irish. In addition, she has held a management position within the school since 1985. The successful male candidate has never held a management position within the school. The complainant has considerable experience of administration within the school having been transition year coordinator since 1994. From 1998 to date she has been Assistant Principal with responsibility for examinations. She has been a full time permanent teacher since 1971. In 1994 and 1995, she was a member of the Science Technology and Innovation Advisory Council. That body conducted a review of the position of Science within education and in the economy as a whole. From 2002 onwards, she has been a member of the National Statistics Board which is a managerial board and review body.
3.7 In 2001 and 2002, the successful candidate sat on the committee to set out the "whole school policy". From 1999 to 2003, he has been a member of the Board of Management of the school. He has no in-house experience of management. Outside the school, he runs summer courses in Ventry in Irish. He has held a full time position since 1984. The complainant submits that if the guidelines circulated by the AMCSS and repeated in the annex to the Department of Education and Science Circular 32/00 had been followed, she should have scored higher marks than the successful candidate.
3.8 In relation to procedural issues, the complainant submits than the successful candidate was a member of the Board of Management of the school and there was potentially a conflict of interest in his sitting as a Board Member while applying for the position. The respondent's solicitors in their letter dated 26 February 2003 have indicated that the successful candidate was present at the Board of Management meeting held on 3 December 2002 at which it was decided that the vacancy of Deputy Principal be advertised internally and filled by competitive interview rather than being filled by the most senior person within the school. The respondent has not indicated whether the successful candidate was present at the Board meeting when the Selection Committee was appointed. The complainant submits that the procedural irregularities illustrate an attempt on the part of the respondent to ensure that the complainant was treated less favourably than the successful applicant and thereby maintaining an exclusive male gender at the most authoritative positions in the school. The positions of Principal and Deputy Principal at the school have always been held by males.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent is a Catholic secondary school and is a voluntary secondary school rather than a community or comprehensive secondary school. The Principal of the school was to be absent for one and a half years and as a result, the Deputy Principal was temporarily promoted to Acting Principal. Consequently, as the post of Deputy Principal had become vacant, the Board of Management sought to temporarily fill the position of Acting Deputy Principal.
4.2 On the advice of the Director of the Education Development Office for St. Mary's Province of the Christian Brothers, the Board of Management advertised for applications for the position. The Board of Management decided not to fill the position by "acting up"one of the three Assistant Principals. This was an informed decision and was based on the fact that a person capable of filling the Assistant Principal position would not necessarily be capable of filling the position of Deputy Principal due to the senior management role and functions of the position of Deputy Principal. It is accepted by those with experience of the education system that the duties of Assistant Principal are not sufficiently similar to justify an automatic promotion from theposition of Assistant Principal to that of Deputy Principal in terms of acting up. The fact that the system of acting up the most senior person was not availed of ensures that the seniority of any applicant it irrelevant to the appointment. The validity of the Board's decision to hold a competitive selection process is confirmed by reference to the Department of Education and Science Circulars 4/98 and 5/98 and the Articles of Management for Catholic Secondary Schools (1998) which clearly distinguish between the positions of Principal and Deputy Principal (4/98) and all other posts of responsibility (5/98). The distinction relates to both the nature of the senior management role of Principal and Deputy Principal and to the manner of filling these two positions in a Catholic Secondary School as outlined in Articles 21(a) and (b) of the aforementioned Articles of Management.
4.3 The Board of Management established a selection committee for the purpose of selecting the most suitable candidate for the position. The selection committee consisted of two nominees of the Board of Management, two nominees of the Trustees and an independent external assessor. The committee consisted of three males and two females. The selection committee was established in accordance with Article 21(b) of the Articles of Management for Catholic Secondary schools. Applicants for the competition completed prescribed application forms. Five applicants were interviewed for the position. They were marked on their application forms and their interviews, according to predetermined criteria. The complainant was marked on both and achieved the third highest score. The candidate who achieved the highest score was the candidate who performed best with regard to both the application form and interview.
4.4 The onus of proof is initially on the complainant and she must prove in the first instance that she has a prima facie case against the respondent. It is not enough to establish a difference in gender between the complainant and the successful candidate. The complainant must establish that there is a difference in gender and that there is a significant difference in their qualifications in order to be considered by the Court as being sufficiently significant to raise a presumption of discrimination.
4.5 The respondent submits that if the only criterion for the position was the length of teaching experience, then the complainant would have scored the highest marks. However, teaching experience was part of one of five predetermined criteria. It submits that the complainant must show that there is a significant difference in qualifications between her and the appointee. It is submitted that years of teaching experience do not equate with qualifications.
4.6 The respondent submits that the selection criteria were agreed in a preliminary meeting of the selection committee. The decision was made following advice and information being provided by the Director of the Education Development Office and with reference to Department of Education and Science Circular 4/98, Schedule 2 - the leaflet on Christian brothers 'Religious and Educational Philosophy', best practice and the vast interviewing experience of the members of the selection committee. The criteria agreed were:
- Qualifications/Experience/Application Form
- Administration and Organisation
- The Education System
- The relationship between the Principal and Deputy Principal
- School Ethos and Philosophy .
4.7 At the preliminary meeting of the selection committee, it was agreed all candidates would be asked the same two questions relevant to each of the predetermined criteria. It was agreed that each member of the selection committee would be allocated the responsibility of ensuring that the same two questions relevant to a particular aspect of the predetermined objective criteria were asked of each candidate. The purpose of this was to ensure that all candidates would be asked the same two questions relevant to each of the criteria. If one member continued in a flow of questions to ask questions relevant to another criterion, than that criterion would not necessarily have to be revisited if it was sufficiently dealt with. The respondent maintains that all candidates were afforded an equal opportunity to convey their views relevant to each criterion and that the complainant was questioned on her qualifications and experience.
4.8 The criteria were applied to the entire selection process including the application form and the interview. The selection committee was provided with the completed application forms and all advice and information in the 'pack' one week in advance of the interviews. The selection committee had both the interview and completed application forms to hand when applying the criteria to select the most suitable candidate. The respondent refutes the complainant's statement that she was not questioned in relation to the second criterion - 'Administration and Organisation'. The complainant was vigorously and extensively questioned on this criterion as were all the other candidates. Similarly, the respondent submits that the complainant was questioned about the education system. It submits that whilst one member of the selection committee was asking questions relevant to administration and organisation, the interview expanded into questions about the education system. As the complainant had answered the questions about the education system comprehensively, the person who had responsibility in relation to questions on the education system did not consider it necessary to revisit the area and ask the complainant almost identical questions.
4.9 The respondent denies the complainant's assertion that she was only asked one question in relation to ethos and philosophy, which was in relation to "religion and the culture of the school". In addition to the applicants being asked two questions in relation to the predetermined criteria, all applicants were asked 'How do you see yourself?' and 'How do others see you?'. All applicants were also asked whether they were happy with the interview and whether they had any questions.
4.10 At the preliminary meeting, the selection committee decided that all five criteria would be allocated equal marks. Each of the five members of the selection committee had a maximum of 10 marks that could be allocated to each applicant for each of the five criteria. The respondent contends that the Articles for Management of Catholic Secondary Schools 1998 makes no reference whatsoever to a marking system for any post. Additionally, the respondent school is a voluntary school and Circular 32/00 does not apply to it. The Circular is directed to Community and Comprehensive schools in relation to competitions for Assistant Principal and Special Duties Teacher posts and not those of Deputy Principal. The respondent submits that it may therefore establish the most effective scoring system having regard to the predetermined criteria subject to the criteria being objective and gender neutral. The respondent maintains that the scoring system was effective as the highest score was achieved by a candidate that was considered to be the most suitable person for the position.
4.11 The respondent submits in relation to procedural issues that it is accepted that the successful candidate had knowledge of the need to temporarily fill the position of Acting Deputy Principal and the proposed method of effecting this marginally quicker than the other applicants. This was due to the fact that he is a Board member and not that he is male. It submits that no advantage accrued to the successful candidate as a result of this fact. The successful candidate absented himself from the Board meeting on 9 January 2003 when the issue of the selection for the position was to be discussed and was present for the balance of the Board meeting when the issue of selection was not being discussed. In relation to the complainant's statement that the positions of Principal and Deputy Principal have always been held by males, it is submitted that up to 1991, the position of Principal was held by a Christian Brother. Whilst the next two lay Principals were also male, no females applied for the positions. The position of Deputy Principal has since 1984 been held by a male.
4.12 The respondent submits that each candidate was assessed on their qualifications and experience, by reference to predetermined objective and gender neutral criteria that were applied in each assessment. Each candidate was assessed using a predetermined and objective scoring system. While the complainant may have had more years teaching experience, the assessment of the complainant applying the criteria revealed that the complainant did not score as many marks as the successful appointee. It is submitted that the complainant has not established the requisite facts from which discrimination may be inferred and thus has not discharged the evidential burden necessary to establish the presumption of discrimination.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against her on the gender ground in relation to promotion to the post of acting Deputy Principal. I will consider whether the respondent directly discriminated against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds
are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as "the gender ground"),
Caselaw on establishing a prima facie case of discrimination
5.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
".... "establish facts" from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 More recently, the Labour Court has stated in a case concerning discrimination on the gender ground:
"The correct test for deciding if the burden of proof shifts to the respondents in this case is that formulated by this Court in Southern Health Board v Dr. Teresa Mitchell. It is a matter for the complainant to prove on the balance of probabilities the primary facts on which she relies in making her case of discrimination. Then it is for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied, the onus is then shifted to the respondents to prove that there has been no infringement of the principle of equal treatment." 2
Issue whether the burden of proof is satisfied in this case
5.5 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the gender ground. The respondent in this case submitted that the Board of Management decided not to fill the position of Acting Deputy Principal by "acting up" one of the three Assistant Principals. It further submits that "..... it is accepted by those with experience of the education system that the duties of Assistant Principal are not sufficiently similar to justify an automatic promotion from the position of Assistant Principal to that of Deputy Principal in terms of "acting up"." The respondent proceeded to appoint a person who had no experience as a post of responsibility holder in the school. It may be true that the duties of Assistant Principal and Deputy Principal are not the same and it is not a requirement to have experience as a post of responsibility holder in order to be appointed to the post of Deputy Principal, however, it would seem logical that experience as a post of responsibility holder and being a member of the school
management team should enable a person to gain at least some experience for a senior
managerial role. I note that both Circulars 04/98 and 05/98 state:
"The Principal, Deputy Principal and holders of posts of responsibility together form the in-school management team for the school."
5.6 In relation to experience, the complainant had approximately 31 years experience as a teacher in the school whereas the successful male candidate had approximately 19 years teaching experience. The complainant therefore had more experience and was more senior. On her application form, the complainant listed a Degree in Arts, a Degree in Economics, a H. Dip and a qualification in computers (specific qualification not stated). The successful male candidate listed a B Sc and a H. Dip. The complainant was therefore better qualified than the successful male candidate. The selection board met immediately prior to the interviews at 2pm (the interviews were scheduled to start at 3pm) and agreed the selection criteria and the marking scheme. Each member of the selection committee had the application forms for almost a week at that stage. The selection criteria and the marking scheme were therefore agreed after the selection committee had access to the application forms of the candidates.
5.7 I note that the Labour Court in South Eastern Health Board v. Brigid Burke3 considered that a number of facts which were established were sufficient to raise an inference that the complainant was discriminated against on the ground of her gender. It considered the following:
"The complainant was the acting director of Nursing and, therefore, could be presumed to have some competency in the position. Nevertheless, the successful candidate obtained substantially higher marks than the complainant for experience in positions, which had no direct relevance to the position being advertised. The SEHB did not have a standard marking system for selection of candidates for posts at this level. Furthermore, it was left to the discretion of the interview board to set this structure and its parameters. The Interview Board met on the morning of the interview and, having examined the Curriculum Vitae of the two candidates, then decided on the marking system giving the highest value to core competencies and special competencies. The level of marks awarded to the complainant was extremely low. There was undisputed statistical evidence to the effect that senior posts in the nursing profession are male dominated."
The Court went on to hold:
"Taken together, in the view of the Court, these facts are sufficient to raise an inference that the complainant was discriminated against on the grounds of her gender and, accordingly, the burden of proof must switch to the respondents to show, on the balance of probabilities, that they did not discriminate against the complainant on the grounds of her gender at the interview process."
5.8 Similarly, with regard to shifting the burden of proof based on a number of facts, I consider the following facts to be established:
- the complainant had more experience as a teacher and was better qualified than the successful male candidate,
- the successful male candidate did not have experience as a post of responsibility holder and was not a member of the school's management team whereas the complainant was a post of responsibility holder;
- the selection criteria and the marking scheme were agreed after the selection committee had access to the candidates' applications.
I consider that these facts are sufficient to raise a presumption of discrimination on the gender ground and the complainant has therefore established a prima facie case of discrimination.
Issue whether the respondent has rebutted the complainant's claim
5.9 I must therefore consider whether the respondent can rebut the claim of discrimination on the gender ground. The respondent submitted that it made a decision to advertise the post internally rather than appoint one of the three Assistant Principals. It submitted that it advertised on the advice of the Director of the Education Development Office for St. Mary's Province of the Christian Brothers (the Trustees). The Director gave evidence at the hearing that he was contacted by the Principal at the time who was acting in his role as Secretary to the Board of Management. He submitted that is the normal procedure for appointments and he is contacted as representative of the Trustees whose role it is to nominate two members of each selection committee. He submitted that appointments to acting principalships vary and may take place by either acting up or by competition. In relation to the post of acting Deputy Principal, it is very much the norm to hold a competition. He submitted that since the revised in-school management structure for schools was implemented in 1998, seniority has been removed as the criterion for appointment to posts. It therefore appears that there was nothing unusual in the decision to hold a competition rather than appoint one of the three Assistant Principals.
5.10 It also appears that if a decision was made to appoint the most senior Assistant Principal, that would not have been the complainant as there was another Assistant Principal who was more senior than the complainant. She submits that she was the most senior "who could fulfil the time requirement .... of one and a half years" as the most senior person was due to retire on a date earlier than the termination of the acting position. Indeed were the respondent to impose a requirement that a person who could fulfil only the full duration of the acting assignment would be appointed, I consider that this could raise a question in relation to indirect discrimination on the age ground. The complainant also raised the difference in procedure in relation to the appointment to the two posts, i.e. the automatic acting up of the Deputy Principal to Acting Principal and the operation of the competitive process to fill the Acting Deputy Principal post. The complainant referred to Circular 4/98 which states that being a Deputy Principal "does not confer automatic right of succession to the Principalship or to any "acting" Principalship arising." Whilst that Circular does not confer an automatic right to progress from Deputy Principal to Acting Principal and seeks to eliminate any expectation of such appointment, it does not prohibit such a progression. Additionally, as stated at paragraph 5.9 above, the Director of the Education Development Office gave evidence that the method of appointment to the Acting Deputy Principal post which was applied in this case was very much the norm.
5.11 Whilst the male candidate appointed did not have experience as a post of responsibility holder in the school, he did have experience as Principal of an Irish College which runs monthly summer courses on a boarding basis for approximately 150 people. At the hearing, the chairperson of the selection board confirmed that this issue came up in discussions as a small part of the successful male candidate's interview and she considered that there would have been an overlap in duties between that role and the Acting Deputy Principal role.
5.12 In relation to the issue of the selection criteria and the marking scheme being agreed after the selection committee had access to the application forms, the Chairperson of the selection committee submitted that when the committee met an hour before the interviews were scheduled to start, they had as part of the documentation forwarded to them, a suggested marking sheet provided by the Secretary to the Board of Management. She submitted that they spoke about what he had suggested and she remembered that they changed it slightly. She remembered that they were using the Secretary's office and they had to ask him to come in to amend the marking sheet criteria on his computer. Another member of the selection committee submitted that the change possibly related to the addition of the application form as a part of the first criterion used for assessment. The Director of the Education Development Office confirmed that he would have made available a sample application form, sample questions and a sample marking sheet to the Secretary. He submitted that the documentation would have been intended to be comprehensive rather than definitive as each appointment is unique. The documents were provided in English and they would then have been translated into Irish by the Secretary. The Director stated that he personally would have no difficulty with the criteria or marking scheme actually used by the respondent. I have examined the sample documents provided by the Director and they are significantly in line with the documentation used by the respondent in the selection process.
5.13 The complainant submitted that the marking scheme used by the respondent was not consistent with the Department of Education and Science Circular 32/00 and if the Circular had been invoked and followed, she should have scored higher marks than the successful candidate. I note that the Circular in question is directed to community and comprehensive schools and the respondent school is a voluntary secondary school. I note that Circular 32/00 contrasts with Circulars 4/98 and 5/98 which respectively deal with appointments of Principals and Deputy Principals and appointments to posts of Assistant Principal and Special Duties Teachers in "Voluntary Secondary Schools". It appears therefore that Circular 32/00 did not apply to the respondent school. I note also that the Articles of Management for Catholic Secondary Schools do not specify assessment criteria or a marking system for appointments to posts of responsibility. Prior to selecting candidates, any prospective employer including the respondent may decide on the appropriate selection criteria and the marks to be awarded under each criterion provided the criteria are relevant to the post, that they are applied in a nondiscriminatory selection manner and as far as possible do not allow for the subjective assessment of candidates. The Labour Court has stated in relation to assessment criteria "The University considered the criteria to be essential for the employment, and there is no evidence that it was unreasonable in taking this position."4
5.14 In relation to the marking of the candidates, the complainant received a total mark of 46 and 35 from the two Board of Management nominees, a total mark of 44 and 34 from the two Trustee nominees and a total mark of 19 from the independent assessor. The successful male candidate received a mark of 46 and 42 from the Board of Management nominees, a total mark of 48 and 39 from the Trustee nominees and a total mark of 34 from the independent assessor. The independent assessor's marks show the most significant difference in the marks awarded to the complainant vis a vis the successful male candidate. The independent assessor awarded the complainant 19 marks out of 50 ( as compared to the successful candidate who was awarded 34 out of 50) but he also scored all the other candidates quite low (22, 19, and 21) with a male candidate being awarded the same mark as the complainant. Bearing in mind that I have found that the complainant was better qualified and had more experience as a teacher than the successful male candidate and that this criterion also included the additional aspect of the application form, I have also considered the marks awarded to the complainant under the criterion of 'qualifications, experience and application form'. The marks awarded by the selection committee under this criterion show that the complainant was scored higher than the successful male candidate by two assessors (a BOM nominee and a Trustee nominee), achieved the same score as the successful candidate from one assessor (a Trustee nominee) and was scored lower on this criterion by one point and 0.3 of a point (by the independent assessor and a BOM nominee respectively). It was submitted that the marking system identified the successful candidate based on the answers given. The evidence given by the board members present at the hearing was that there was a brief discussion after each interview and they then filled out the score sheets separately and privately. The evidence was that there was no question of influence being exerted on any of them and they were adamant as to their independence in the marking of candidates and the integrity of the process. It was submitted that it was the first time that the five interview board members worked together and the Chairperson of the interview board gave evidence that it was the first time that she met the two Trustee nominees.
5.15 The respondent submitted that each member of the selection committee asked two questions under the category that they were assigned responsibility for. The complainant submitted that she was not questioned in the manner submitted by the respondent and that she was not questioned on her qualifications and experience or on the education system. She submits that she was asked only one question on administration and organisation, one question on the relationship between the Principal and Deputy Principal and one question on school ethos and philosophy. At the hearing, the complainant submitted that not enough merit was given to the application form, that she was not specifically questioned according to the predetermined criteria and that the selection process was not implemented in a fair manner. She did not agree with the evidence given by the selection committee members present at the hearing in relation to the questions they asked. She relied on the notes of the interviews in support of her argument and submitted that the notes did not record that precisely the same questions were asked of each candidate. She also referred to the fact that the questions actually asked were not recorded and that the amount of notes taken varied from candidate to candidate. She later submitted that the notes "do not reflect clear and objective criteria being applied to each candidate during the interview process but rather signal a diverse treatment of certain candidates with regard to the interview process." She further submitted that the interview notes "show a marked lack of transparency and fail to sufficiently demonstrate clear and objective predetermined criteria being applied with equivalence to all candidates."
5.16 The issue of the conduct of interviews and whether the questions asked by the Chairman of an interview board related to the skills that he had taken responsibility for were considered by the Labour Court in an age discrimination case.5 It stated:
"The Court has given careful consideration to the evidence in relation to the conduct of the interviews. There was, to say the least, a sharp difference of recollection and perception as to how the interviews were conducted between the complainants who gave evidence on the one hand, and the members of the interview board on the other. The Court believes that much of the criticism of the process which was voiced by the complainants may have been influenced by their understandable disappointment at the result. For this reason the Court believes that it should approach this evidence with caution."
5.17 The Labour Court has also emphasised the importance of keeping interview notes. It has stated:
"A failure to keep records of interview processes, which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination."6
The notes of some of the interviewers which consist only of words/phrases are less helpful than the notes of others. There are considerable notes made by the Chairperson of the selection board in respect of the complainant vis a vis the other candidates. I note that the complainant was the first candidate interviewed and the Chairperson submitted that the reason that she made so many notes in respect of the first candidate was because she was nervous at the commencement of the interviews. Another member of the selection committee stated that her notes were only written to distinguish the candidates in her mind. I do not think it is conceivable that interview notes are made with the foremost intention of demonstrating total fairness in the selection process and I consider that the primary focus of such notes when they are being made is to aid the selection committee in the marking of candidates. Additionally, interview notes cannot be regarded as transcripts of the interviews.
5.18 I have considered the notes and the notes of one of the selection committee refer to the complainant being the only person who emphasises the girls and that a woman should be appointed and that it would help to attract more girls to the school and also that the complainant mentioned how important it would be to have a woman as a Principal/Deputy Principal on the management team. I do not think that the comments can be interpreted in a negative way in respect of the complainant's gender as the selection committee member in question gave the complainant a total of 46 marks out of 50 and ranked her joint first with the successful male candidate. I note that four out of five of the selection committee ranked the successful male candidate first. The complainant also raised the issue of the successful male candidate being on the board of management and section 21(c) of the Articles of Management for Catholic Secondary Schools which deal with disclosure of interest by selection committee members. It provides that " A member of a Selection Committee who stands in a relationship to a person who is a candidate shall disclose to the Board of Management the fact of the relationship and the nature thereof." Selection committee members are asked to make a disclosure not only in the case of a family relationship but in respect of any personal, business or other relationship which could be prejudicial to ensuring impartiality. The complainant raised the issue of whether the committee members who were the Board of Management representatives had satisfied themselves that they were not prejudiced as a result of knowing the successful male candidate in their roles on the Board of Management. One of the Board of Management nominees present at the hearing confirmed that they did not consider section 21(c). I am not satisfied that an issue in respect of disclosure under section 21(c) arose in this case and the complainant's argument would mean that Board of Management representatives would never be in a position to sit on selection committees where teachers who were also on the Board of Management were being interviewed.
5.19 The respondent's representative in a letter dated 26 February 2003 to the complainant's representative indicated that the successful candidate was present at the Board of Management meeting held on 3 December 2002 at which it was decided on advice that the vacancy of Acting Deputy Principal would be advertised internally and filled by open competition. A copy of the draft minutes of the Board of Management meeting in question which were prepared by a member of the board who was also on the selection committee was made available. The respondent submitted that the original minute book had been mis-placed when the school moved premises. Given the evidence of the Director of the Education Development Office in relation to his advice on the matter of recruiting to the position and the total number of persons on the board of management (eight plus the Principal as Secretary), I am not convinced that the presence of the successful candidate (whilst it may have been improper of him not to have absented himself) could have had a significant impact on the decision to hold a competition for the post. In relation to the presence of the successful male candidate at the Board of Management meeting on 9 January 2003 at which the decision to ratify the nomination of the selection committee was made, the minutes of the meeting record the successful male candidate as having left the meeting at the point where the issue was being discussed.
5.20 I must also consider how the selection committee was nominated. The Articles of Management specify that the selection committee should comprise two representatives of the Board of Management, two representatives of the Trustees and an independent assessor. It was submitted that there were eight persons on the Board of Management and the Principal of the school acted as Secretary to the Board. One of the Board of Management nominees present at the hearing stated that she was asked whether she would be willing and she agreed. She explained that the teacher representatives on the Board for obvious reasons could not do it. The draft minutes of the Board of Management meeting on 3 December 2002 indicate that at the meeting, three people were proposed for the interview board and that two people were to be named by the Trustees. The Director of the Education Development Office stated that he nominated two people on behalf of the Trustees. There is not a list of persons available and he operates on the basis of personal knowledge when making nominations and in this case, he considered people with experience as interviewers together with the competence to conduct the interviews in Irish and gender balance. I note that three of the selection committee members present at the hearing confirmed that they had attended training sessions organised by the Education Development office for selection boards which included equality issues. The Labour Court has stressed the importance of training for interview boards and has where necessary ordered that "The appellant shall ensure that internal interview boards have interview training, ..."7
5.21 At the hearing, the complainant referred to the "Manual for Boards of Management of Catholic Secondary Schools" and stated that the selection process did not accord with the procedures detailed in relation to the information to be provided for applicants and in relation to making a written record of the questions asked to each candidate which is then signed by each member of the committee and retained by the Chairperson. The Director of the Education Development Office stated that the book referred to came into operation in May 2003. It was therefore not in existence at the time of the competition. Additionally, the contents of the Book are intended as a guideline only and are not mandatory. Subsequent to the hearing, the complainant made available a copy of "A Manual for Boards of Management of Catholic Secondary Schools (Revised Edition)" - published in 1999 and submitted that the Manual "sets out at page 57, the relevant model policy in relation to the procedure for the filling of posts of Vice-Principal." She quoted further from page 57 and stated "the position of Vice-Principal is therefore intended to be filled by automatic succession of the most senior candidate unless that candidate does not have the capability and suitability .....". Again, it appears to me that the contents of the Book are intended as a guideline only and are not mandatory or statutory based. Additionally, the post being filled in this case was not the post of Vice-Principal but the post of Deputy Principal under the revised in-school management structure for schools.
5.22 The complainant submitted that the positions of Principal and Deputy Principal have always been held by males. The respondent submitted that the position of Principal was always held by a Christian Brother until 1991 and while the next two lay Principals were also male, no female candidates applied for the positions. The person who is now the acting Principal stated at the hearing that he has been Deputy Principal since 1984 and there has not been a vacancy for the position since that time. The respondent submitted that the school became a co-educational school in 1994 and the ratio of male to female pupils currently is 3:1. It submitted that the ratio of male to female teachers at the time of the competition was 11:7 and currently is 11:9. The ratio of male to female post of responsibility holders at the time of the competition was 4:1 and currently is 4:1. The ratio of male to female teachers is disputed by the complainant who submits that the correct ratio at the time of the competition was 13:8 and for the 2003/2004 school year was 9:8.
5.23 In relation to the issue of the selection committee having possession of the applications before they agreed the assessment criteria, I consider that selection criteria should always be drawn up taking into account the job specification prior to examining the applications for a post and it would have been prudent for the selection committee to have applied this procedure. The Labour Court has stated:
"..., this Court has consistently stressed that interview boards, both internal and external, should be trained, and apply strict promotion criteria agreed in advance with adequate markings and should keep comprehensive interview notes."8
However, I do not consider that the practice adopted in this case, in itself, and in the absence of other factors, amounts to discrimination on the gender ground. In the present case, assessment criteria and a marking system were drawn up by the former principal in his role as Secretary to the Board of Management which was in line with the sample criteria provided by the Director of the Education Development Office. The first criterion was modified slightly by the selection committee when they met prior to the interviews. Candidates were assessed and marked according to the assessment criteria. During the shortlisting process, the marks were recorded and some notes were made in respect of the candidates and equally as important, the relevant documentation was retained by the respondent. I consider therefore, that the respondent has rebutted the complainant's claim of discrimination on the gender ground.
5.24 It may have been reasonable for the complainant to believe that she should have been the successful candidate in the light of her seniority, qualifications and her experience as set out at paragraph 3.6 above. However, the Labour Court has stated:
"It is not for this Court to substitute its own views as to whether the appellant was a suitable candidate for the position. It is for the appellant to establish facts from which it may be presumed that the decision was reached on the basis of discrimination......"9
More recently again, the Court stated:
"The Court accepts that it is not the responsibility of the Equality Officer or the Court to decide who is the most meritorious candidate for a position."10
It went on to hold that the function of the Court is to determine whether discriminatory grounds influenced the decision of the selection board. Accordingly, it is not my function to supersede the choice of candidate made by the respondent. My remit is to determine whether the selection process was conducted in a manner which was free from any form of unlawful discrimination and I have found at paragraph 5.23 above that the respondent has rebutted the complainant's claim of discrimination on the gender ground.
5.25 The complainant in a letter dated 30 July 2004 to the Tribunal also submitted:
"We also observe from our review of the interview notes prepared by [Mr. X] that there is a further reference to the successful candidate's relationship with the School Principal and his membership of the Board of Management. These criteria are not accounted for in respect of any other candidate and indeed the successful candidate's membership of the Board of Management is again deemed worthy of mention in the interview notes."
If the complainant is alleging that the successful male candidate was appointed due to his relationship with the school principal and/or his membership of the Board of Management, then the issue is not one of gender discrimination. Additionally, and as mentioned in the preceding paragraph, it is not my function to determine whether the appointment was made for one or both of these reasons, my remit being to determine whether the selection process was conducted in a manner which was free from any form of unlawful discrimination within the meaning of the Employment Equality Act, 1998.
6.1 On the basis of the foregoing, I find that the respondent did not discriminate against the complainant on the gender ground in terms of section 6(2)(a) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to promotion to the post of Acting Deputy Principal.
22 September 2004
1 DEE011 15 February 2001
2 South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004
3 Determination No: EDA041 12 January 2004
4 University College Dublin v. Professor James Mc Kernan AEE/01/19 Determination No: 028 19 August 2002
5 Revenue Commissioners v. O' Mahony & ors ADE/02/9 27 January 2003
6 The Department of Health and Children v. John Gillen EDA0412 27 July 2004
7 The Department of Health and Children v. John Gillen EDA0412 27 July 2004
8 The Department of Health & Children v. John Gillen EDA0412 27 July 2004
9 University College Dublin v. Professor James Mc Kernan AEE/01/19 Determination No. 028
10 South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004