The Equality Tribunal
Employment Equality Acts 1998-2008
EQUALITY OFFICER'S DECISION NO: DEC-E2012-124
(Represented by INTO)
- V -
Caherconlish Board of Management
(Represented by Siobhan Phelan BL, instructed by Mason, Hayes and Curran Solicitors)
File references: EE/2010/042
Date of issue: 19 September 2012
Employment Equality Acts - Discriminatory Treatment - Promotion - Age ground - no Prima facie case
1.1. This dispute concerns a claim by Ms. Jacinta Ui Chinneide (hereafter "the complainant") that she was subjected to discriminatory treatment in relation to three promotion competitions to Principal contrary to the Employment Equality Acts by Board of Management of Caherconlish National School (hereafter "the respondent") on the grounds of her age. The complainant stated that she applied for the post of Principal in Caherconlish National School on three separate occasions but was unsuccessful in her applications.
1.2. The complainant referred her claim of discrimination to the Director of the Equality Tribunal on 29 January 2010 under the Employment Equality Acts. The claim was made on the age ground. In accordance with his powers under section 75 of the Acts, the Director then delegated this case to Valerie Murtagh- an Equality Officer - on 16 May 2012 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 17 July 2012.
2. Case for the Complainant
2.1. The complainant submitted that she was discriminated against by the respondent by the application of an unfair and biased selection process in relation to the post of Principal. It was submitted that the complainant was a more qualified teacher than the successful candidate with a proven track record of competence to meet the needs of the position. The complainant submits that she commenced her teaching career in 1975. In 1992, she was promoted to Deputy Principal and she moved to the respondent school in November 2001. On her appointment to the respondent school, she acted as Deputy Principal for several periods from 2002 to November 2006 when she was appointed to the post on a permanent basis. Subsequently, the complainant served as Acting Principal of the respondent school from 2 February 2009 until 1 November 2009.
2.2. It was submitted that in October 2007, the then Principal of the school announced he intended to retire and the post of Principal was advertised. The complainant applied and was called to interview. She submits that she was informed one week after the interviews by the outgoing Principal, Mr. H that a male who was a Principal in another school had got the post and that she was better off without it. The complainant states that about ten days later, Fr. G, chairperson of the board of management and who acted as chairperson on the interview panel approached her in the school corridor and said that she did an excellent interview but was not the best candidate for the post that 'a young man with vast experience got the job and would take the school into the future'. The complainant expressed her disappointment to Fr. G at the outcome and said she felt as if youth was winning out over age. The successful candidate was 33 years of age.
2.3. The new Principal stayed one year at the respondent school and the post of Principal was advertised again in December 2008. Interviews were held in January 2009. The complainant applied and was called to interview but was unsuccessful. The complainant was approached in the school some days after the interview by Fr. G; he stated to her that 'a candidate from Dublin had been appointed that she was roughly 28 or 29 and that she was a Deputy Principal and that she would lead the school into the future'. The complainant states that she was concerned that the age of the candidate was mentioned. The complainant states that she recalls asking Fr. G how the successful candidate could have lots of experience at her age and Fr. G replied saying she had lots of experience in a DEIS school in Dublin. The successful candidate on this occasion was 29 years of age.
2.4. The complainant states that Fr. G advised her the new candidate would take up the position in one months time and that the complainant was to act as Principal until the new appointee arrived and that she would be 'well paid for it'. The complainant continued as acting Principal through the remainder of the school year. She was given several dates by Fr. G for the arrival of the new Principal but the new appointee never took up the post. The new appointee visited the school on two occasions to hold a meeting and to allocate classes. At this time, there was a lot of anxiety amongst teachers about the uncertainty around the new Principal not being in situ and a staff meeting was called. The complainant states that two staff members walked out of this meeting and that Fr. G flew into a rage with the complainant over something she said about the fact the new appointee hadn't taken up her position. The complainant states that Fr. G stated to her 'don't get smart with me' and banged his keys on the desk and marched out the door.
2.5. Staff of the school requested a meeting with an official of the INTO to discuss various concerns they had including the issue of the uncertainty prevailing over the non-appointment of the new Principal. The complainant states that the INTO official was very empathetic towards her situation and he stated to her that Fr. G was not treating her very well. The complainant also stated to the INTO official that as Acting Principal she was not included in the board of management meetings and he advised her of her entitlement to do so. The complainant states at this time she was so busy with school business she did not lodge a case to the Tribunal within the required time limits for the first two competitions but at this time she was pondering the decision to take a case and understood she had one year from the time of the alleged discrimination to do so. Subsequently, following meetings with the INTO official, Fr. G informed the complainant on 1 July 2009 that he received a letter from the successful candidate stating she would not be taking up the post and it was now too late to advertise the post and it would be filled in September.
2.6. The post was readvertised on 1 September, 2009 and the complainant applied. She was called to interview. The complainant submits that a board of management meeting was held on 5 October to ratify the appointment of the successful candidate. The complainant was not invited to attend although she was Acting Principal at the time and it was the custom that the Principal attend board of management meetings. On 7 October, the complainant asked Fr. G about the outcome of the selection process and he replied by saying 'you will know when you know'. The following day Fr. G attended the school, he met the complainant and told her that 'while she did an excellent interview, she was not the best candidate for the post and informed her that a young person from the Gaelscoil had been appointed'. The successful candidate on this occasion was 30/31. The complainant expressed her disappointment given the fact that she was acting Principal since the previous January. The complainant contends that Fr. G replied by saying 'you can do what you like and go where you like but you won't get anywhere'. The complainant visited the Diocesan Education secretary to express her dismay at the outcome of the selection procedure particularly in light of the fact that she had acted as Principal since the previous appointee resigned and had previously acted as Principal for 9 months in 2009 without any complaints. The secretary stated that he could not interfere with the process. The complainant wrote to Fr. G requesting results of the last two interviews. Fr. G had since moved to another parish and his successor Fr. D replied to the complainant stating that 'unfortunately parish records including the January 2009 results were destroyed when the house was flooded'.
2.7. On the day of the hearing, the respondent stated in relation to the third competition that while it was a close contest between the complainant and the successful candidate, the complainant received a negative oral reference. The complainant submits that she does not accept that the former Principal, Mr. H would have given a contradictory oral reference to the Chair of the board of management, Fr. G to the purported extent and manner represented by him at the hearing. The complainant submits that Fr. G's interpretation of what Mr. H allegedly said is biased, unreliable, unfair and inaccurate. She asserts that her confidence and certainty in this regard is based on her long and excellent relationship with Mr. H since he appointed her to the school in 2001 and on the fact that Mr. H never once in all that time ever indicated any difficulties or raised any issues along the lines suggested by Fr. G. In addition, the complainant submits that what Mr. H allegedly said is entirely contradicted by the excellent written reference which he provided which stated, inter alia, 'I have no hesitation in recommending Jacinta for the position of Principal'... that Ms. Ui Chinneide 'excelled in all aspects of her work, is hard working and conscientious..' and that 'she is extremely well-liked by the school staff and is very co-operative.. and.. is highly regarded by the parents..'. The complainant's representative submits that it is not credible that Mr. H would have deviated from his written reference to the purported extent and manner represented by Fr. G at the hearing.
2.8. The complainant's representative submits that at all times throughout her teaching career with Mr. H which spanned from November 2001 - January 2007, she had an excellent rapport with him and nothing ever passed between them which would have given rise to any of the comments attributed to Mr. H by Fr. G at the hearing. In addition, the complainant submits that the fact Mr. H specifically asked that he would be the one to inform the complainant of the result of the first interview for the principalship in Caherconlish school demonstrates the camaraderie which they shared and the respect and high esteem which Mr. H had for the complainant. The complainant refutes the suggestion that there was any issue raised with her previously by Mr. H as was alleged by Fr. G at the hearing. The complainant asserts that throughout her teaching career whilst Mr. H was Principal that no issue or difficulty whatsoever arose between them. The complainant submits that as evidence of this, Mr. H was a member of the selection board which appointed her as Deputy Principal in 2006.
2.9. The complainant's representative submits that Fr. G's role in the appointment process was pivotal and ultimately resulted in the non-appointment of the complainant to the post of Principal. The complainant's representative further submits that in the interests of fairness, another referee should have been contacted as there were two additional referees listed on the application form. The complainant's representative asserts that if the oral reference provided by Mr. H was negative to the purported extent and manner as represented by Fr. G then it seems extraordinary, incredible and tenable that, notwithstanding, the complainant was awarded 23 marks out of a possible 30 marks under the criteria of References & CV given the fact that the successful candidate received extra marks for a Masters in Irish under this criteria and the differential was 5 marks between the two candidates. The complainant's representative submits case law in Delaney v Board of Management, Drumshambo Central National School (DEC-E2004-067). Ms. Delaney had nominated two referees in her CV one of which gave a negative oral reference to the Board. The Equality Officer stated "....I consider that the interview board should not have entertained this reference without having established if these issues had been raised directly with the complainant while she was teaching in the particular school and the outcome of this course of action.." The complainant's representative submits that in the interests of fairness and transparency, Fr. G should have sought a further written reference from Mr. H and should have furnished both the selection board and the complainant with same and that the complainant should have been given a right of reply given that the respondent stated it was a close contest at that point.
2.10. Arising out of the complainants concerns, a complaint of discrimination on the age ground was lodged with the Tribunal in January 2010. The main reasons the complainant considered she had suffered discrimination were;
(a) the remarks made by the Chairperson of the respondent board in reporting the outcome of the process
(b) the failure to recognise her experience of the role of Acting Principal at the respondent school
(c) the substantial difference in age which was apparent between the complainant and each of the successful candidates
(d) the lack of transparency in the procedure apparent in the Board's failure to provide her with notes and marks of the first two competitions and the failure to hold individualised marks regarding the third competition
2.11. The complainant's representative submits case law relating to the Labour Court decision in Department of Health and Children v Gillen EDA0412 in relation to the time limit issue with regard to the two earlier competitions for Principal where it states .."In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground."
3. Case for the Respondent
3.1. The respondent submits that the complaints made in respect of the competitions that took place in October 2007 and January 2009 are out of time as no complaint in respect of these two competitions was made until February 2010 and no justification has been advanced for the failure to pursue these claims within the correct timeframe. The respondent submits that the Tribunal has no jurisdiction to investigate these claims.
3.2. The respondent states that the complainant applied for the post of Principal on the three separate occasions. It states that she was the only candidate to be interviewed for each of the three appointments. The respondent states that the applicable standard procedures were adhered to in respect of the selection procedures as set down in the Department of Education and Science circular. It confirmed that on each occasion the interview panel met to agree selection criteria in advance and to shortlist applicants for interview. They proceeded to agree the questions to be asked by the different interviewers and applied the agreed criteria in ranking the interviewees. The respondent submitted that the successful candidate in 2007 was already a Principal with two years experience in a large school and the successful candidate in January 2009 had experience as Acting Principal in a large school for a period of one and a half years. The respondent asserts that no complaint was made by the complainant following the first two competitions that she was discriminated on the grounds of her age. The respondent submits that the complainant voiced her concerns to Fr. G following the interview in January 2009 to the effect that the appointment was influenced by the Archbishop.
3.3. The respondent submitted that Fr. G denies that he made any discriminatory remarks to the complainant and stated that he is a very experienced interviewer and has been involved in interviewing since 1995 and would never consider age to be a relevant or appropriate consideration. Fr. G recalls that following the second interview, the complainant was very annoyed with him for not telling her the outcome of the selection process. Fr. G explained that he was not in a position to do so as he required the consent of the patron before he was in a position to advise the successful candidate or any other candidate. The respondent submits that as far as Fr. G is aware, the complainant was aware of board meetings and attended same. In relation to the board of management meeting on 5 October, 2009 to ratify the appointment, Fr. G states that he advised the complainant that the board meeting was taking place but it would be inappropriate for her to attend given that she was one of the candidates. Fr. G recalls that the complainant was very abusive to him stating that 'he did not like her and that was why she was not getting the post'.
3.4. The respondent submitted that the complainant scored lower under the criteria of Catholic Ethos, Inclusion/Partnership/Community and References & CV. It asserts that the successful candidate gave exceptional answers and performed better in these categories. It states that she was very impressive in the ideas she was able to articulate to the panel and the quality of her responses were excellent. The chair of the panel was required to check references following the interviews and stated that the complainant got a negative reference but that the other candidate came highly recommended and she had excelled in her current school as regards bringing the various classes on in 'leaps and bounds' and they stated that while they would be happy for her they were she would be a huge loss to their school. The respondent stated that while it was a close contest and it was very tight between the complainant and the other candidate that the successful candidate performed better at interview and got a very impressive reference. It also states that the successful candidate had a Masters in Irish and she received credit for this under the criteria of References & CV. The complainant on the other hand got a negative reference, her referee stated that 'he felt she did not have the managerial qualities to run the school as Principal and that he had concerns regarding her manner of communicating'.
3.5 The respondent submitted that all board members have vast experience in relation to interviewing candidates for the education sector and that they have 17, 9 and 14 years respectively between them. They strongly refute the allegation of age discrimination and state that the successful appointee got the post on merit and performed the best at interview. The respondent strongly rejects alleged discriminatory remarks attributed to Fr. G, chairperson of the interview board in communicating the results of the competitions to the complainant.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider (i) whether the complaints in relation to the two earlier competitions are referred within the time limits prescribed at section 77 of the Employment Equality Acts and are therefore within my jurisdiction to investigate and (ii) if the complainant has established a prima facie case in relation to the most recent act of discrimination pursuant to Section 85A of the Employment Equality Acts 1998 to 2008 that she was discriminated against on grounds of age.
4.2. In relation to the issue of the complaints regarding the two earlier competitions and the fact that these complaints were not lodged within the correct timeframe; I have examined the arguments raised by the complainant regarding;
(i) the close proximity of these competitions to the most recent competition
(ii) the fact that the average age of the successful appointee was circa 30 for each of the three competitions for promotion to Principal
(iii) the complainant's experience vis a vis that of the successful appointees
(iv) the commonality of interview board members on the selection panel with the exception of one member
(v) the alleged discriminatory remarks made by Fr. G following the selection procedure for the three competitions
I am of the view that, given the totality of the points raised above together with the complainant's argument that the respondent adopted a policy to discriminate in favour of a younger candidate, the two earlier acts of alleged discrimination can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Tribunal may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground. I am satisfied that the two earlier acts of alleged discrimination are validly before the Tribunal.
4.3. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' (Mitchell v Southern Health Board  ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule". In Dublin Institute of Technology and a worker DEE9/94 the Labour Court said "It is not the responsibility of the Equality Officer or of this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the [protected ground] influenced the decision of the interview board."
4.4. In relation to the selection procedure for the two earlier competitions, Fr. G stated that there was flooding at the priest's house where files and notes/marks of interviews were retained and all such documentation was destroyed. I am of the view that, given the points raised at 4.2 above together with the non-existence of interview notes and marking systems with regard to the two earlier competitions, the complainant has raised a prima facie case of discrimination and the onus is on the respondent to provide a credible alternative reason which can demonstrate that the outcome of the selection process was due to factors unconnected with the complainant's age.
4.5. At the hearing, two members of the interview panel gave testimony regarding the interview process for the two earlier competitions and submitted that the most suitable candidates were appointed based on merit following the selection procedure. The respondent submitted that the successful candidate in 2007 was already a Principal with two years experience in a large school and the successful candidate in January 2009 had experience as Acting Principal in a large school for a period of one and a half years. I note that the complainant has no issue with the composition of the interview boards or the type of questions asked. Indeed, the complainant at the hearing stated herself that she received a very fair interview on each occasion. The interview board members gave evidence that the criteria used to assess candidates were those laid down by the Department of Education and Science, that the line of questioning had been decided in advance and that the marking had been carried out in accordance with the criteria. In relation to the third competition for promotion to Principal, the respondent submitted that the complainant scored lower under the criteria of Catholic Ethos, Inclusion/Partnership/Community and References & CV. The interview board members each individually gave evidence, independent of each other and were unanimous in stating that the performance of the successful candidate was exceptional. It asserts that the successful candidate gave a more comprehensive holistic approach in her answers and performed better under the criteria Catholic Ethos, Inclusion/Partnership/Community and References & CV. It states that she was very impressive in the ideas she was able to articulate to the panel and the quality of her responses were excellent. The successful candidate also received extra marks under the criteria of References & CV for holding a Masters in Irish. The Masters qualification was looked at in terms of References & CV and not under the heading Experience/Qualifications. I found the interview board members to be credible and cogent witnesses and each were consistent in their testimony with regard to the performance at interview of the complainant vis a vis that of the successful candidate.
4.6. The chair of the panel was required to check references following the interviews and given that it was a close contest between the complainant and the successful candidate, the most appropriate referee for each of these candidates was contacted. The respondent submitted that the successful candidate came highly recommended, in that, she had excelled in her current school as regards bringing the various classes on in 'leaps and bounds'. Her referee stated that although they would be happy for her if she got the post, she would be a huge loss to their school. The respondent stated that while it was a close contest and it was very tight between the complainant and the other candidate that the successful candidate performed better at interview and got a very impressive reference. It also states that the successful candidate had a Masters in Irish and she received credit for this under the criteria of References & CV. The complainant on the other hand got a negative reference, her referee stated that 'he felt she did not have the managerial qualities to run the school as principal and that he had concerns regarding her manner of communicating'. I questioned each of the members of the interview panel separately and all three were consistent in their testimony with regard to the feedback given following the chair of the interview panel making contact with the referees.
4.7. On hearing all the evidence in this case, I am satisfied, on balance, that age was not a consideration in the selection process. I note that the complainant stated herself that she received a very fair interview. The complainant's representative took issue with the fact that no individualised marks under each of the criteria headings on behalf of the members of the interview panel were retained and that this in itself raises issues of transparency in the selection procedure. Instead, the three interview member's marks were added to give an overall mark. I do not consider this issue to be detrimental to the respondent's case. The complainant's representative also argued that if the complainant's referee did give a negative oral reference, which they do not accept, in the interests of fairness, the interview board should have requested a reference of one of the additional two referees listed on the application form. The respondent has stated that it was custom and practice to make contact with the most relevant and appropriate referee on the application form and in the case of the complainant, it was submitted that Mr. H the former Principal of the school would have been the most relevant and appropriate referee. I am satisfied that Mr. H the former Principal was the most appropriate referee to contact in relation to the complainant's application for the post of Principal. I also accept the testimony given by individual members of the interview panel, independently of each other that it is not unusual for written references not "to stack up" when checked.
4.8. I am satisfied that the successful candidate received greater marks under the criteria of Catholic Ethos, Inclusion/Partnership/Community and References & CV and excelled in her answers in these areas. She also received extra marks for holding a Masters in Irish and came highly recommended by her referee. While the complainant scored better under the criteria of Experience/Qualifications and Understanding of School Administration, there was still a differential of 12 marks between the two candidates. However, in relation to the references, the successful candidate came highly recommended but the complainant received a negative oral reference. The complainant was never advised that she received a negative oral reference and this matter came to light on the day of the hearing. I am of the view that the complainant was treated most unfairly, in that, she was given a glowing written reference by her referee but when the chair of the interview panel contacted the referee by telephone following interview, she received a negative oral reference. I am of the opinion that there is an onus on persons who put themselves forward as referees to be open and transparent in their account of that person and that they should be professional in their approach and not resile from the information provided in the written reference unless there is some objective justification warranted by events in the interim. In the instant case, I am not satisfied that there is a nexus between this treatment of her and her age. For an inference of age discrimination to arise, the complainant would have to show a nexus between the protected ground and the treatment. No such inference can be drawn from the facts of this case.
4.9. It is clear that the complainant firmly believed that she was a better candidate than the successful candidate. It is also clear that the complainant is older than the successful candidate. The interview panel stated that while both candidates performed well at interview, the successful candidate was an exceptional applicant. I am aware that all members of the interview panel have vast experience in relation to interviewing candidates for the education sector and that they have 17, 9 and 14 years respectively between them. In addition, two of the interview board members were Principals and were familiar with the procedural requirements of the interview process. It is important to note that it is not a matter for this Tribunal to assess whether the successful candidate was the best person for the job. The Tribunal's jurisdiction only extends to an investigation whether the process applied, in this present case on the grounds of the complainant's age, was discriminatory. The complainant submitted that she was better qualified than the successful candidate. There is no evidence to support an argument that a person's age equates to more qualifications. Such an argument is specific to the complainants own personal traits. It is clear that the complainant scored higher under the criteria of Experience & Qualifications and Understanding of School Administration as a result of her level of qualifications and experience with the respondent. However, the outcome of this interview was not dependant on two criteria. Nine broad competencies were required and applied. Indeed, there are only 12 points between the successful candidate (413 out of 450) and the complainant (401 out of 450).
4.10. In relation to the alleged discriminatory remarks which the complainant states, that in communicating the result of the competitions, the chairperson of the interview board mentioned the age of the candidates and that he had to "look to the future of the school"; the respondent rejects these allegations. At the hearing Fr. G stated that while he may have mentioned the word 'young' post the selection procedure in describing the successful appointee, he cannot definitively recall. He submitted that he has been involved in interviewing on school boards since 1995 and would never consider age to be an appropriate or relevant factor in the selection process. The respondent submits that merely using the adjective 'young' to describe a person who has succeeded at interview for a job does not connote discriminatory intentions where the adjective is a statement of fact or of relative fact. The respondent further submits that to describe the successful candidate as 'young' ex post facto is not evidence that age was a consideration in the decision to give the person the job, rather it is descriptive of the person who got the job. This matter was in dispute on the day of the hearing. However, I did not find any evidence after extensive questioning of the chairperson of the interview board to back up the allegation in regard to these alleged discriminatory comments made following the outcome of the selection process. Overall, I do not consider that the complainant has established facts which are of sufficient significance to indicate that the assessment of the interview board was influenced by the age of the candidate.
5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the respondent did not discriminate against the complainant on the grounds of age. Therefore, the case fails.
19 September 2012