THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 – 032
Mr. James Martin Henderson
Board of Management, Scoil Iosagain
(represented by Mr Niall Beirne B.L., instructed by Mason Hayes and Curran Solicitors)
File Reference: EE/2006/029
Date of Issue: 28th April 2009
The case concerns a claim by Mr James Martin Henderson that the Board of Management of Scoil Iosagain discriminated against him on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, by not appointing him to a position of primary school teacher at the school in 2005 and 2006.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 31 January 2006. On 11 May 2007, , in accordance with her powers under S. 75 of the Acts, 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 Acts. On 19 March 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 8 April 2009. A submission was received from the complainant on 21 November 2006. An additional submission was received on 26 February 2008, in which he specified complaints of discrimination and victimisation in relation to a competition held by the respondent in 2006. A submission was received from the respondent on 3 April 2007, and an additional submission from the respondent was received on 28 November 2007 Additional evidence was requested from the respondent on 24 March 2009 and received on 6 April 2009.
Summary of the Complainant’s Written Submission
The complainant submits that he was discriminated against on the ground of his gender when he was not appointed to a position as primary school teacher at the respondent school in 2005 and 2006.
He further submits that his failure to get appointed constitutes victimisation by the respondent and that this adverse treatment, with respect to the 2005 competition, was caused by Labour Court proceedings he took previously against the respondent, and that in 2006, it was occasioned by the complaint he filed with the Tribunal in January 2006.
Summary of the Respondent’s Written Submission
The respondent denies discriminating against, or victimising the complainant in any way.
Conclusions of the Equality Officer
The issues for decision in this case are whether the complainant was discriminated against on the ground of gender within the meaning of the Acts; and whether the respondent victimised the complainant for bringing a complaint before the Tribunal.
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
In my examination of the relevant evidence, I follow the decision of the High Court in Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], where Quirke J held that a
gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidates “together with” a gender difference may give rise to such a requirement.
A gender difference exists with regard to the 2005 competition, in which the complainant was the only male candidate in a field of otherwise female candidates. However, the complainant was not able to demonstrate a significant difference in qualifications relative to the successful female candidates. In the marking sheets, 10 additional points were awarded to each candidate who had successfully completed their probation as a primary school teacher. The complainant admitted that unlike the successful candidates, he had not completed his probation. He further admitted to performing poorly in his interview, which was reflected in low marks in this area. I therefore find that he has failed to establish a prima facie case in access to employment on the ground of gender.
With regard to the 2006 competition, there were a number of male candidates besides the complainant, all of whom scored higher points in the competition than the complainant. Two of these men were appointed to positions within the school. I therefore find that the gender ground does not arise with regard to the 2006 competition, and that the complainant has failed to establish a prima facie case in access to employment.
With regard to the complainant’s complaint of victimisation, it is the complainant’s contention that he was victimised by the respondent for taking a case to the Labour Court under the Protection of Employees (Fixed-Term Work) Act 2003. S. 74(2)(b) of the Employment Equality Acts defines “victimisation” as being dismissal or other adverse treatment of an employee by his or her employer that occurs as a reaction to “any proceedings by a complainant”. However, S. 2 of the Acts defines “proceedings” as
(a) proceedings before the person, body or court dealing with a request or reference under this Act or on behalf of a person and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference. [Emphasis added]
I therefore find that I have no jurisdiction to deal with this complaint since it does not relate to proceedings brought under the Employment Equality Acts.
The complainant also complained of victimisation in relation to the 2006 competition. Since this competition took place after the complainant had lodged his complaint with the Tribunal, I find that I do have jurisdiction to investigate pursuant to S. 74(2)(b). It was the complainant’s contention that victimisation arose from what he felt was a general lack of transparency of the appointment process. He also submitted that a friend, since deceased, had told him that if he had not made a complaint, he might have been successful in securing a position. However, the complainant was not able to refer to an identifiable adverse reaction of any kind that was directed against himself, by anyone associated with the respondent organisation, which might be considered victimising. I therefore find that he has failed to establish a prima facie case of victimisation subsequent to his complaint to the Equality Tribunal.
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that
(i) The respondent did not discriminate against the complainant in access to employment pursuant to S. 8(1)(a) of the Acts, on the ground of his gender pursuant to S. 6(2)(a) of the Acts and
(ii) The respondent did not victimise the complainant pursuant to S. 74(2) of the Acts.
28 April 2009