(represented by Mary Honan B.L., instructed by O' Mara Geraghty Mc Court Solicitors)
Board of Management, Colaiste Chiarain
(represented by Ms. Cliona Kimber B.L., instructed by Arthur O' Hagan Solicitors)
1.1 The case concerns a claim by Ms. Elizabeth Maher that the Board of Management, Colaiste Chiarain, Leixlip 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 promotion to the post of Assistant Principal (acting).
2.1 The complainant applied for the position of Assistant Principal (acting) in September 2003 and was unsuccessful in her interview. The successful candidate was male. She alleges that she was discriminated against on the gender ground. The respondent denies the allegation of discrimination and submits that the appointment to the post was on merit alone and not on any discriminatory ground whatsoever.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 9 December 2003. On 13 October 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 26 November 2004 and from the respondent on 2 December 2005. Supplementary submissions were received from the complainant and respondent on 23 December 2005 and 7 February 2006 respectively. A joint hearing of the claim was held on 21 February 2006 and on 7 March 2006.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant contends that her employer Colaiste Chiarain Community School failed in its obligation under the Employment Equality Act, 1998 to provide equal access to her in relation to career promotion and progression. Initial discussions concerning the circumstances which give rise to this case date back to a meeting between the complainant and the school principal in 2002. At that time, the complainant outlined the emerging statistics and trends of gender imbalance in the school. The overall situation has deteriorated and this is reflected in the September 2003 competition (of which the complainant now complains). The respondent refused to provide any statistical information to the complainant save a list of permanent staff by gender on the grounds of confidentiality.
3.2 The complainant alleges that she was discriminated against on the basis of
- The overall gender imbalance in relation to senior posts in the school;
- The general culture in the school;
- The conduct of the September 2003 competition for promotion to Assistant Principal (acting) in the school.
3.3 The statistics as of 20 November 2003 demonstrate the huge disparity in career advancement between males and females. Whilst males represent 37% of permanent staff, they hold 78% of Assistant Principal Posts.
3.4 The climate regarding gender is unhealthy and at times hostile (The complainant gives a number of examples including references to various conversations). The complainant at the meeting with the Principal in February 2002 referred to a number of issues, particularly the harassment of females into not applying for promotion and the treatment of those who had been promoted.
3.5 The complainant submits that she was discriminated against directly and indirectly throughout the selection process in September 2003. On the first day of the 2003/2004 school year, the Principal chaired the traditional start up school staff meeting. He informed the staff that one of the 'A' post (Assistant Principal) holders had submitted a certificate indicating he would be on long term sick leave. This resulted in an 'acting up' vacancy. In a departure from custom and practice, the principal stated that he would himself act as Year Head until the interview process was concluded. There had been two identical situations in recent years and the practice had been for the Assistant Year Head to continue to deputise for the absent Year Head until the selection process was completed. In each of these situations, the Assistant Year Head was subsequently interviewed and appointed. The complainant was convinced that the principal was laying down a marker to her and to all her colleagues that she was not to be appointed to the position. She felt publicly humiliated having worked with the year group for three years. She considers that the Principal chose to initiate the process with a complete break with custom and practice, its effect clearly discriminatory.
3.6 The complainant submits that the interview and associated assessment in September 2003 were conducted in a totally unprofessional manner. The complainant had a meeting with the Principal after the results had been announced. She submits that the salient points as stated by the Principal at the meeting were:
- There was no job description or person specification and the interview panel received no input whatever on the needs or ethos of the school;
- The interview panel received no elaboration on the track record of candidates;
- The assessment made by the panel was based on the ten minute interview which was truncated to that length because that was the duration of the first candidate's interview;
- He knew nothing of the criteria the interview panel used in reaching their decision on allocating the 50 marks for the needs of the school. It was entirely the function of the board to decide on the criteria, assign marks and to make the selection.
3.7 The complainant submits that it is a clear breach of the ACS/ASTI/TUI agreement that she was not questioned on her track record as a teacher or as an assistant Year Head. The only question related to her CV concerned her views on a substance abuse training course which she had attended. She submits that at the end of the interview she decided to inform the panel of her track record in Year Head work. There was no sign of interest or any follow up questions from any member of the interview panel. The mandatory procedure provides "The interviews should be designed so as to enable the candidate to demonstrate how he/she is suited to a particular appointment by virtue of professional qualifications, skills and experience."
3.8 The complainant submits that it is therefore the case that the selection panel:
- Operated without a job or person specification and had no guidance whatsoever on the needs of the school;
- Were assigned full responsibility for the assessment of candidates, some of whom they were meeting for the first time and then just for ten minutes;
- Breached the mandatory requirement to assess candidates on their track record by not structuring the interview to do so.
3.9 The complainant at the time of the competition in September 2003 had 17 years service in the school and 7 years directly relevant Year Head experience. At that time, the successful male candidate had 20 years service in the school and 6 weeks Year Head experience. The complainant contends that there is serious gender discrimination culturally embedded in the school for a number of years and manifest in specific terms throughout the September 2003 selection process.
4. SUMMARY OF THE RESPONDENT'S WRITTEN SUBMISSION
4.1 The complaint arises out of a competition in September 2003 for the appointment to the temporary post of Year Head in the respondent school. The vacancy arose due to the long term sick leave of another member of staff. The post was formally termed 'assistant principal (acting)' and was one of a number of positions of assistant principal (acting) which involve assisting the principal in running and managing the school. In essence, the post in issue involved dealing with disciplinary and pastoral matters.
4.2 The complainant attended for interview on 17 September 2003 before a properly constituted selection board in line with procedures for interviews laid down in an agreement between the Association of Secondary Teachers in Ireland, the Teachers Union of Ireland and the Association of Community and Comprehensive Schools (Circular Letter 32/00 of the Department of Education and Science). The interview board consisted of two females and one male all of whom were highly experienced and had taken part in numerous interviews in the course of their careers, as well as training in interviewing techniques. The complainant was unsuccessful. The respondent rejects the allegation of discrimination and denies that there is a culture of discrimination within the school. The interview was conducted by a panel of interviewers who were from outside the school, who were independent (two experienced female teachers and a Department of Education and Science inspector) and in no way under the influence of any member of the respondent school.
4.3 The respondent submits that the interviews were conducted in a fair and non-discriminatory manner and that all candidates were treated equally. All candidates were asked the same questions and were given the same opportunity of putting forward matters which they considered to be relevant. All interviews took the same length of time. Questions were asked in relation to (i) the contents of the candidates' CV's, then on (ii) professional development and subsequently in relation to (iii) Year Head duties. At the end of the interview, candidates were asked if they wished to add anything which had not been addressed at interview.
4.4 The respondent submits that the selection process was a fair and unbiased process put in place to choose the best candidate and the decision of the interview panel was based on a combination of Curriculum Vitae and performance at interview. The respondent relies on its contemporaneous score sheets in this regard. The candidates were marked on a standard form marking sheet negotiated in advance by the TUI/ASTI for all such posts across the sector. The marking sheet is highly structured and was negotiated by the TUI/ASTI on behalf of its members.
4.5 The respondent submits that the public marker which the complainant alleges was put down is irrelevant to the interview process as it was entirely unknown to the interview panel. Up until 2003, there was a practice in the respondent school that in the event of a Year Head going sick or being otherwise absent, the acting Year Head would step into the acting principal post pending competition and interview. The practice was however perceived as giving an unfair advantage to the incumbent in the future interview. The teacher unions, TUI/ASTI had made representations and were in favour of the practice being changed. The Principal therefore decided that it would be fair and more ethical if he himself acted as Year Head until the interview process for the vacant post was concluded. The change in policy was totally unconnected with the complainant and did not in any ways constitute discrimination on the gender ground. The members of the interview board deny that the questions asked were limited, that there was any lack of interest in the complainant's track record as Year Head. In relation to the complainant's allegation that the Principal did not brief the interview panel, explain the ethos of the school or go through the content of the CVs with the panel or elaborate on the track record of the candidates, the respondent submits that the Principal in refraining in any way from attempting to compromise the independence of the interview panel acted entirely properly. The only task of the Principal was as secretary to the interview board and to record information. The respondent submits that the interview board was not informed in relation to the gender balance of posts in the school as to do so would have been entirely inappropriate and would have been discriminatory on grounds of sex itself. The respondent denies the allegation that there is a culture of discrimination against females in the school and submits also that the data of the complainant is too small.
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 Assistant 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 Council Directive 97/80 EC on the Burden of Proof in Cases of Discrimination Based on Sex was transposed into Irish Law by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001. Article 3(1) of the Regulations, which transposed Article 4 of Council Directive 97/80/EC provides:
"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove to the contrary."
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered Article 4 of the Directive and 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......, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based."
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 There were 7 applicants for the promotional post of Assistant Principal (acting), three female and four male. The complainant submits at page two of her first written submission that she bases her case on (i) the overall gender imbalance in relation to senior posts in the school, (ii) the general culture within the school and (iii) the manner in which the 2003 competition for promotion to Assistant Principal (acting) was conducted. The complainant also refers to (iv) a departure in September 2003 from the normal appointment process for acting up positions pending appointment. The complainant in her supplementary submission refers to:
- the unprofessional nature of the entire selection process which lasted just ten minutes;
- the lack of probing of her track record and any meaningful attempt to assess the complainant's suitability for the position;
- the wide gulf in experience in Year Head work (seven years and none) between the complainant and the successful male candidate;
- the lack of credibility of the respondent's assertions concerning how the interview panel reached their decision.
5.6 In relation to the complainant's statement that at November 2003 males represented 37% of permanent staff and held 78% of Assistant Principal posts, the respondent submitted in its written submission that the complainant's analysis is flawed, unsubstantiated and is not based on accurate data. However, the respondent did not provide any alternative figures to support its contention in the matter. Whilst the statistics may on the face of it represent a gender imbalance, there could be many and varying reasons why the statistics present as such and may be due, inter alia, by the personal choices made by female staff and not necessarily a bias towards males in relation to appointments to posts of responsibility. I am reluctant to accept that the statistics in themselves and in the absence of other factors shift the burden of proof. In the Mitchell (3) case, the Court referred to the Gleeson (4) case and the cumulative effect of various factors which taken together shifted the burden of proof. I will proceed to consider whether there are other factors which taken together with the statistics may establish a prima facie case of discrimination on the gender ground.
5.7 The complainant refers to the general culture in the school as indicative of gender discrimination. In support of her claim, she refers to a number of incidents and quotes from various people during the period 1998 to 2002. A number of female teachers called as witnesses on behalf of the complainant gave evidence that they were neither encouraged nor discouraged by the former Principal in applying for posts of responsibility. They also gave evidence in relation to hostility from male teachers following their appointments to posts of responsibility and exclusion and ignoring by the former Principal. Ms. A gave evidence that following her appointment to an Assistant Principal post of responsibility, a number of male teachers changed their attitudes to her and one told her that she was "set up for the job". She submitted that there was no direct reference by any of them to her gender. Ms. B submitted that she considered that there was a bias in favour of men and submitted that she was aware of how she was treated. Another female teacher, Ms. C also considered that there was a culture of bias in favour of men. She submitted that she herself had been the subject of negative treatment by the former Principal and submitted that on occasion, he turned around when he met her in the corridor, walked past her or would avoid being in a particular group. She submitted that there was a consistent pattern of such behaviour. Ms. D submitted that there was "a serious bias in favour of men in everyday life in the school". She gave evidence of some difficulties in meeting with the principal and ascertaining her duties when she was appointed to a temporary B post of responsibility whereas a male who was also appointed was given his duties from a much earlier time. A number of the witnesses gave evidence of raising the matter informally in various different fora but none made a formal complaint in respect of a culture of bias in favour of men.
5.8 The former Principal denied the various allegations and submitted that he actively encouraged the female teachers to go forward for posts. I have considered the incidents referred to and the evidence presented and I have no doubt as to the veracity of the evidence presented by the witnesses on behalf of the complainant based on their perception of a bias in favour of men in the school. Whilst I appreciate that a general culture of bias in a general sense is difficult to prove, in the circumstances of the present case, I find that there is insufficient evidence to support a finding of a culture of bias in favour of males in the school. This should not be interpreted as a finding that a culture of bias in favour of men did not exist in the school.
5.9 The complainant alleges that the former Principal departed from custom and practice in September 2003 when a vacancy for Year Head arose and stated that he would act as Year Head until the interview process was concluded thus denying the complainant the opportunity to be appointed to the post in the interim. The respondent submitted that the practice of allowing an Assistant Year head remain in position in an acting capacity until the selection process was completed was not good practice and would not be acceptable to the teacher unions. It also submitted that the "practice had previously been found by the Arbitrator for dealing with disputes in respect of promotion to posts of responsibility in Community/Comprehensive schools to be unfair." The respondent does not dispute that at that point in time, the practice in relation to acting up appointments pending competition was changed.
5.10 The complainant at the time of the competition had seven years experience as a Special Duties Teacher with responsibility for Year Head duties. The successful candidate submitted that he had approximately four years experience as a Special Duties Teacher. At the time of the competition, he had responsibility for the Audio Visual needs of the school and submitted that he also had one years experience as an assistant Year Head. The complainant received less marks than the successful candidate (126 and 130 respectively) under the category of "Capacity of the applicant to meet the needs of the school and case made at interview". I note that the complainant had received a good reference from the Assistant Principal who carried out the duties of Year Head and who was assisted by the complainant as the Special Duties Teacher carrying out the duties of an assistant Year Head. Whilst I note that there are two aspects to the criterion in question, the complainant did have considerable experience performing Year Head duties and it was not submitted that the complainant performed those duties poorly, I consider that a question therefore arises as to how the complainant achieved less marks than the successful candidate. It was also not disputed by the respondent that the interviews took only ten minutes. I have taken into account (i) the statistics as presented by the complainant, (ii) that there was at the time of the competition in 2003 a change in practice in relation to appointments to acting up positions pending competition, (iii) the duration of the interviews and (iv) that the complainant had a considerable period of Year Head experience as compared with the successful male candidate and in the circumstances, I find that the complainant has established a prima facie case of discrimination on the gender ground. It therefore falls to the respondent to rebut the complainant's claim of discrimination.
Issue of whether the respondent can rebut the complainant's claim of discrimination
5.11 On the question of whether the respondent can rebut the complainant's claim of discrimination, I will firstly consider the issue of the respondent's departure from practice in relation to appointments to acting up positions pending competition. In a second submission received from the respondent, it submitted that the General Secretary of the Association of Community and Comprehensive Schools (who was the Principal of the school in issue until 1996) submitted that when the then Principal raised with him how the acting post should be filled, he advised that the practice of allowing an assistant Year Head remain in position up to interview was not good practice and that the practice had previously been found by the Arbitrator for dealing with disputes in respect of promotion to posts of responsibility in Community/Comprehensive schools to be unfair. A copy of an Arbitrator's decision dated 20 June 2001 which arose from a competition for a permanent Assistant Principal post was subsequently made available to me. I cannot attribute the findings as alleged by the respondent to the Arbitrator in that case. The Arbitrator stated that "If a successful candidate is rewarded for the performance of an assistant principal position which arose out of a competition that was deemed by the Arbitrator to be unfair then an unfair advantage over other applicants in any future competition is gained by such a candidate and I hold that such marks should not be awarded...... I am of the opinion that this requires such a competition to be undertaken ab initio and without any advantage that may have been derived from the previous competition that was held to be unfair being given to any applicant in the new competition." The issue in that case relates to a person remaining in a post which has been appealed and thereby gaining an unfair advantage in any future competition. That is not the issue in the present case and I cannot see the relevance of that particular Arbitrator's decision to the situation in issue.
5.12 I will now proceed to consider the marking of candidates. The complainant submits that there is no dispute with the respondent as to the duration of the interview, the structure of the interview and the questions posed. She also submits that she has no objection to any single question posed at her interview rather her complaint arises, inter alia, from the absence of other questions which could have elicited appropriate evidence as to her suitability for the position. She also submits that she was given no opportunity to outline her track record in Year Head work and that the "lack of professional probing on track record is very pertinent to the case." I have examined the marks awarded to the complainant and the successful male candidate under the various headings as per the standard marking sheet used. The interview board had no discretion in relation to the marks to be awarded for service to the school. The successful male candidate was awarded more marks than the complainant under the heading of 'Service to the school in a permanent whole time capacity' (27 and 21 marks respectively out of a maximum of 30) . In relation to the criterion of "Experience of a professional nature in the field of education and the involvement of the applicant in the school", this category was further subdivided into nine sub-criteria and if the candidate had experience in all areas, they got full marks. The complainant got full marks (20) under this heading from all three interviewers whereas the successful male candidate got 18 marks from all three interviewers. The difference in marking between the complainant and the successful male candidate in this category related to the complainant having experience as a Board of Management representative.
5.13 The criterion under which most marks (50) could be awarded was "Capacity of the applicant to meet the needs of the school and the case made at interview". The complainant submits that the respondent could not have made a professional evaluation of her capacity to meet the needs of the school by conducting the interview as they did. The complainant received marks of 38, 40 and 48 (out of 50) from the three interviewers whereas the successful male candidate received marks of 42, 43, and 45. The complainant therefore scored a mark of 126 and the successful candidate scored a mark of 130. The respondent submitted that the successful candidate scored better under this category notwithstanding that the complainant had considerable experience performing Year Head duties as he performed better at interview. The Department of Education inspector submitted that the complainant did not grasp the point of his second question. Another interview board member submitted that she felt that the complainant was over relying on her experience with a particular year group and that the successful male candidate possibly gave the best answers. Another interview board member who gave the complainant the highest marks in this category considered that the complainant was generous in making more of an effort than she needed to and her gut feeling was that the complainant would carry out the duties well notwithstanding her answers at interview.
5.14 The interview board members gave evidence in relation to the marking system applied. Whilst all three members marked the candidates individually, they had a discussion on the candidates subsequently and ranked the candidates in order of merit following that discussion. I note that Circular 32/00 provides:
"The criteria to be adopted by the Selection Committee when determining their order of merit for submission to the Board of Management has now been agreed as follows:
Capacity of the applicant to meet the needs of the school 50
and the case made at interview
Service to the school 30
Experience of a professional nature in the field of education 20
and involvement in the school"
The Department of Education Inspector submitted at the hearing that there was no revision of the order of merit in respect of the successful candidate but that there may have been in relation to the second or third candidate.
5.15 In the marking given to candidates, the successful candidate who was male was ranked first, candidate C who was female was ranked second and candidate A who was male was ranked third. However, in the order of merit which was recommended to the Board of Management, the successful candidate was ranked first, candidate D who was female was ranked second and candidate C who was female was ranked third. Whilst one of the interviewers submitted that the ranking of candidates is not important for a post of responsibility, Circular 32/00 provides that the order of merit should be determined by reference to the three criteria specified in that Circular. In the circumstances of this case, it appears, therefore, that there was a mismatch between the formal selection criteria which should have been applied to rank the candidates and the ranking system applied in practice thereby allowing the operation of a subjective assessment. 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." (5)
5.16 The respondent submits that the needs of the school were determined by the invitation placed on the Staff Notice Board to suitably qualified staff to apply for the post of "Assistant Principal Post of Responsibility (Temporary) Duties and Responsibilities of P. Duffy". At the hearing, the respondent supplied a copy of the notice which it submitted was placed on the staff notice board. That notice specified that the duties of the post "are those carried out by Mr. Duffy i.e. Year Head of a designated Year Group" The particular duties are not specified. The complainant disputed that the notice submitted in evidence was the notice posted on the notice board and submitted that the notice presented at hearing was not what she saw on the notice board. At the hearing, the Department of Education representative on the interview board was shown a copy of the notice and he gave evidence that he did not see the notice in question. He submitted that there may have been a cover note with the documentation he received indicating that the post was for acting Year Head duties and that he did not receive any information on the particular year head duties involved. Another member of the interview board gave evidence that she checked with the Principal as to the nature of the acting up post.
5.17 The respondent submitted in the ODEI 4 form that "Given the range of experience and expertise available to the members of the Interview panel they well understood the nature and purpose of an Assistant Principal Post of Responsibility in a Second Level School and well capable of understanding the advertisement placed on the Staff Notice Board." In its written submission, the respondent states "The qualifications and experience of the interview panel, which included acting and former school principal, meant that the interview board were fully aware of the job specification and needs of the post." I note that the marking sheets are headed "Assistant Principal (Temporary) - Duties and responsibilities of Mr. P. Duffy." and that there is no reference to Year Head duties. I note also that the minutes of a meeting that the complainant had with the former Principal on 8 October 2003 which were recorded by the complainant state that the Principal agreed that it was for the interview board themselves to decide on the needs of the school. The contents of the minutes were not disputed by the respondent. Taking into account the evidence as a whole, I am not satisfied that the duties and responsibilities of the Year Head position were clearly set out in advance of the interviews and communicated to the interview board members. I have also considered how candidates were assessed under the heading of 'Capacity of the Applicant to meet the needs of the school plus case made at interview' and based on the oral evidence of the interview board members during the hearing, I am also not satisfied that the interview board had regard to the five sub criteria in the Annex to Circular 32/00 which provides guidelines on assessing candidates under that heading. The assessment of candidates under this category may be contrasted with how the interview board assessed candidates under the category of 'experience' where they clearly identified nine criteria and the marks to be awarded under each criterion.
5.18 The complainant further submits that the Board of Management must be satisfied that the process delegated to them (to provide a selection recommendation) is done professionally and equitably and takes full account of its legal requirements under employment legislation. She submits that it was "unreasonable to suggest that the Board of Management (via the interview panel) could discharge this on the basis of a ten minute interview." The complainant submits that there is no dispute between the parties as to the questions asked, however, she submits that there was an absence of questions which could have elicited appropriate evidence as to her suitability for the position. 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. (6) 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."
However, it is difficult to understand how ten minute interviews were sufficient to ascertain the most suitable candidate for the position.
5.19 The Department of Education representative made some notes on the marking sheets in respect of each candidate's performance and these were made available. The respondent was not in a position to provide a list of the questions asked save for the questions asked by the Department of Education representative. The former Principal acted as Secretary to the interview board. He submitted at the hearing that he recorded the time of the interviews, the questions that were asked and whether the questions asked were uniform. The respondent submitted that it could not locate the notes and they were not in the box of files in the school.
The Labour Court has stated:
"A failure to keep records of interview process, which of itself may not be discriminatory, when coupled with other factors , may lead a Court to infer that there has been discrimination." (7)
5.20 I have considered that issues arise in relation to the following (i) the change in practice in relation to appointments to acting up positions pending competition, (ii) the duties and responsibilities in relation to the specific acting up post being set out clearly, (iii) how candidates were assessed under the heading of 'Capacity of applicant to meet the needs of the school and the case made at interview' (iv) that a list of questions asked is not available save for those asked by the Department of Education representative and (v) that there was a mismatch between the formal ranking system to be applied and that actually applied in practice and I find that the respondent has failed to rebut the complainant's claim of discrimination. I therefore find, on the balance of probabilities that the respondent discriminated against the complainant in relation to the Assistant Principal (acting) position in 2003.
6.1 On the basis of the foregoing on the balance of probabilities, I find that the respondent discriminated 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 appointment to the post of Assistant Principal (acting).
6.2 In accordance with section 82 of the Employment Equality Acts 1998-2004, I hereby order that the respondent:
(i) pay the complainant the sum of €5000.00 compensation for the effects of the act of discrimination. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination in the selection process for the post of Assistant Principal (acting) and does not include any element relating to remuneration (and is not therefore taxable):
(ii) adhere to good practice selection procedures in all future promotions including applying a formal marking system, ranking candidates by reference to that marking system and making and retaining notes.
3 May 2006
1. DEE011 15 February 2001
2. South Eastern Health Board v. Brigid Burke Determination No: EDA041 12 January 2004
4. Gleeson v. The Rotunda Hospital & anor DEE003 18 April 2000
5. Department of Health & Children v. Gillen EDA0412 27 July 2004
6. Revenue Commissioners v. O' Mahony & ors ADE/02/9 27 January 2003
7. The Department of Health and Children v. John Gillen EDA0412 27 July 2004