THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2012-005
Dun Laoghaire Vocational Education Committee
(represented by Irish Business and Employers Confederation)
File reference: EE/2007/138
Date of issue: 10th January 2012
Keywords: Employment Equality Acts, Family Status, Training, Promotion, Conditions of Employment, No prima facie case
1.1 This dispute concerns a complaint by Joan Gallagher against Dun Laoghaire Vocational Education Committee. The complainant alleges that she was discriminated against on the grounds of family status in relation to access to promotion, conditions of employment and training contrary to the Employment Equality Acts 1998 -2008 [hereinafter referred to as 'the Acts'].
1.2 The complainant referred her complaint under the Act to the Director of the Equality Tribunal on 7th March 2007. In accordance with his powers under Section 75 of the Act, the Director delegated the case on 15th November 2010 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and a Hearing was held on 8th September 2011 as required by Section 79 (1) of the Act. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
2. Summary of the complainants' case
2.1 Ms Gallagher began her employment as a teacher with the respondent in 1988. She was made permanent in 1992. In 1993, she was made permanent as Assistant Principal to manage the Secretarial Department. This role was expanded to include the setting up of the IT Teacher Training Course and to redevelop and manage the Business Studies Department. In 1996, she was asked by the former principal to set up a multimedia course - an area where she had limited experience. She did this while managing the IT Teacher Training course, teaching fourteen hours and managing the Secretarial Department and Business Studies Department. In February 1999, Ms Gallagher went on maternity leave. When she returned from maternity leave, she developed a Graduate Diploma in Multimedia Studies and she submits that she continued to work hard.
2.2 The complainant submits that discrimination on the grounds of family status began in September 2000, when Mr A was promoted to Deputy Principal. In May 2001, while she was on maternity leave with her second child responsibility for the Business Studies Department was given to a woman with no children. She admits that the then Principal Mr B rang her to say they were restructuring management within the College and asked her opinion on giving the management of the Business Studies Department to Ms C. The complainant submits that she asked was there a problem with her management. According to Ms Gallagher, Mr B replied 'No, not at all but we think you have enough to do with the multimedia department, the new baby and your family. The complainant submits that she subsequently found out that the decision was already made.
2.3 In May 2002, the position of Assistant Principal/ Head of the IT Department became vacant. Dun Laoghaire VEC disregarded their established practice of giving it to the most senior Assistant Principal. This custom was disregarded. According to Ms Gallagher, the position was filled without notifying her or the other Assistant Principals by transferring a less senior and less qualified Assistant Principal - Ms C. The role of Head of IT Department was seen as good for promotion - it also meant less teaching hours.
2.4 Ms Gallagher maintains that she was more qualified than the person who took over this role as Ms Gallagher has a Masters in Computer Applications for Education (First Class honours) as well the experience outlined above. The complainant states that she had sixteen years teaching experience versus Ms C's eight years of teaching practice. Ms Gallagher had twelve years of diverse experience as an Assistant Principal against Ms C who had three years of experience in one Department.
2.5 Ms Gallagher submits that the Head of the IT Department was reclassified as 'Manager of the Blackrock Campus'. The complainant submits that this made the position a Senior Management position. This allowed her to delegate the normal duties of a Department Head to Assistant Principals.
2.6 In May 2004, the position of Deputy Principal became vacant when Mr A became Principal. The complainant applied for the position but did not obtain it. Ms Gallagher has no issue with this as she said the person who was appointed to the role was the best candidate.
2.7 However, she submits that around this time a quasi-Deputy Principal role was created for Ms C. Ms Gallagher submits Ms C was afforded further preferential treatment by receiving secret training and her teaching commitment reduced for no legitimate reason.
2.8 When an other Deputy Principal vacancy came up in 2006 Ms C was appointed. Ms Gallagher had also applied for this position. The complainant submits that she did an excellent interview and that the only reason Ms C was appointed is that she had previously been given the 'plum' jobs because she had no children. It is this competition that the complainant is claiming discriminatory access to promotion.
2.9 She alleges that when the Chairman of their Trade union Branch raised the issue that having meetings at 9:00 a.m on Wednesday mornings was not family friendly, Mr A responded by saying ' Married women with children should do as his wife had done, that is, give up work and stay at home'.
2.10 Ms Gallagher submits that she was victimised when she received a warning about her attendance after she told the respondent that she intended appealing the recruitment of the competition for the Deputy Principal in 2006. On 27th October 2006, she was ten minutes late for work. She rang the school and left a message saying she would be late. Later that day the Principal sent an email to all staff reminding them if they are delayed to phone him or one of the Deputy Principals. On 24th November and 1st December Ms Gallagher was late again. She refused to use her mobile phone en route as she does not have a hands-free kit in her car. Instead, she kept a spreadsheet of her late attendances which she sent to the Principal. On 5th December, she submits that she received a written warning for her late attendance. On 14th December, Mr A told her that this spreadsheet system of noting lates was not in line with their procedures.
3. Summary of the respondent's case
3.1 The respondent submits that all Assistant Principal posts have the same status and the same remuneration. Ms C did have reduced teaching hours in 2002 but that was because a course collapsed. She later went back to full teaching hours.
3.2 The respondent submits that all staff are encouraged to partake in training. Dun Laoghaire VEC funded Ms Gallagher's MSc in Computer Applications in Education. The respondent categorically denies that Ms C received 'secret' training.
3.3 Regarding the 2006 competition, they insist it was done in fair and consistent manner. Dun Laoghaire VEC insists that the interview panel had no knowledge of the family status of applicants. They argue Ms C was simply the best candidate in terms of qualifications, leadership skills and knowledge of the further education sector. The complainant was placed fifth of six candidates. Therefore, if Ms C had not applied for the post, the complainant would still not have been appointed. They point out that Ms C also applied for the Deputy Principal vacancy in 2004 but she failed to obtain it. The Deputy Principal appointed that time is a parent. She is now the Principal.
3.4 The respondent reject that the discriminatory remarks as alleged by the complainant were made.
3.5 Regarding victimisation, Mr A admits that an email was sent around pointing out that staff should ring the Principal or one of the Deputy Principals if they are delayed as that morning Ms Gallagher phoned the caretaker. The respondent point out that Ms Gallagher requested that the respondent pay for a hands free mobile phone kit for her car in the event of her being late in future. This was not granted. The respondent states the letter from Mr A was not a formal written warning and was not placed on her personnel file. The letter also acknowledges the contribution Ms Gallagher has made to the college.
4. Conclusions of the Equality Officer
4.1 Section 6 (1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is family status¬¬¬¬¬¬. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.2 The issues for me to decide are:
(i) was the complainant discriminated against on the ground of family status, regarding access to promotion?
(ii) Was the complainant discriminated against by the respondent in terms of training on the same ground?
(iii) Was the complainant discriminated against in terms of her conditions of employment?
(iv) Was the complainant victimised within the meaning of Section 74 of the Acts?
4.3 According to Section 8(8) of the Act, an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or the employer does not in these circumstances offer or afford the employee access in the same way to those opportunities. I examined the recruitment process in 2006. I did not find convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as the candidate that obtained the position. No evidence has been adduced to me that the selection process was tainted with discrimination. Consequently, the complainant has failed to establish a prima facie case of discrimination on the ground of family status in relation to access to promotion.
4.4 The complainant alleges that there was a negative attitude towards mothers in Dun Laoghaire VEC and that a number of discriminatory remarks were made to her. Regarding the allegation at 2.9, Mr A gave cogent direct evidence on this issue. He said it was a private rather than an official conversation with a person he had previously regarded as a friend. Mr A submits what he said was 'When couples have children, they have choices to make and they should make provision to allow them focus on work while at work'. I preferred Mr A's evidence. The current Principal is a mother. Regarding Ms C getting less teaching hours in 2002, I accept this was because a course was cancelled and therefore she was given administrative work. The complainant has not established a prima facie of discriminatory treatment regarding her conditions of employment.
4.5 The complainant has not adduced less favourable treatment regarding training. In direct evidence, it emerged that the 'secret' training Ms C received was that she attended a presentation by a sales representative of a timetabling software package. Therefore, the complainant has not established a prima facie case of discriminatory treatment on the ground of family status.
4.6 Section 74 (2) of the Act state victimisation occurs where dismissal or other adverse treatment of an employee by his employer occurs as a reaction to a complaint of discrimination made by the employee to the employer, any proceedings by a complainant, an employee having represented or otherwise supported a complainant, the work of an employee having been compared with that of another employee for any of the purposes of this Act, an employee having been a witness in any proceedings under this Act, an employee having opposed by lawful means an act which is unlawful under this Act, or an employee having given notice of an intention to take any of the above actions.
4.7 The colloquial meaning of victimisation differs from the meaning under these Acts. To demonstrate victimisation the complainant must show a link between a complaint of discrimination on the ground of family status and adverse treatment. In the letter of 12th October 2006, complaining about the selection process, no mention is made of Ms Gallagher's family status. In the subsequent letter from Ms Gallagher's solicitor (who was on record at the time) no reference is made to the Employment Equality Acts. Therefore, the complainant has failed to establish a prima facie case of victimisation.
I have concluded my investigation of the above complaints and hereby make the following decision in accordance with Section 79(6) of the Act. I find that
(i) The complainant was not discriminated regarding conditions of employment on the ground of family status
(ii) The complainant was not discriminated in relation to training on the grounds of family status
(ii) The complainant was not discriminated regarding access to promotion on the grounds of family status
(iii) the complainant was not victimised within the meaning of 74(2) of the Acts