THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2014 – 097
A Teacher (represented by INTO)
A National School (represented by Mason, Hayes and Curran, Solicitors)
File Reference: EE/2012/019
Date of Issue: 30th December 2014
Keywords: age – access to promotion – rating two very differently qualified candidates as “equally qualified” – prima facie case – religion – sexual orientation – interview questions – “religious outlook” protected under S. 2 of the Employment Equality Acts – S. 37 exemptions do not avail respondent.
1.1. The case concerns a claim by Ms A. that the National School who employs her discriminated against her on the grounds of age, religion and sexual orientation contrary to Section 6(2)(d), (e) and (f) of the Employment Equality Acts 1998 to 2011, in terms of access to employment and promotion.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 23 December 2011. A submission was received from the complainant on 20 July 2012. A submission was received from the respondent on 17 October 2014. On 15 September 2014, in accordance with his 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 30 October 2014. Additional evidence was requested from the complainant on 15 December 2014 and received on the same date.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she qualified as a primary teacher in 1987. From 1990 to 2000, she lived in the United States, where she worked in the technology industry, completed a Master’s degree and further expanded her teaching skills as a Teaching Assistant in Boston College. When she returned to Ireland in 2000, she took up a lecturing post in UCC before returning to primary teaching in 2002. She has been employed by the respondent since 2003 in the role of Deputy Principal.
2.2. In June/July 2011, she applied for the position of Principal. The initial interview process was invalid due to breaches of regulations contained in the document “Boards of Management of National Schools – Constitution of Boards and Rules of Procedure”. The position was re-advertised and the complainant re-applied.
2.3. When the complainant attended for her second interview, she was taken aback that the interview board was identical to the first interview board, and was comprised of Sr B., Mr B., and Mr C. In particular, she submits that the presence of Mr C. was in contravention of the rules of procedure mentioned above. The complainant contends that this breach alone, together with the fact that the successful candidate was considerably younger and less experienced than she was, raises a prima facie case of discrimination on the ground of age, and that the burden of proof should shift to the respondent.
2.4. The complainant also raises lack of transparency in how the criteria for assessment of the applications were applied. Specifically, she submits that of the nine criteria in total, “Teaching Experience and Reports on Competence”, “Other Relevant Experience” and “References” were not utilised.
2.5. Finally, the complainant submits that Sr B. asked inappropriate questions during her interview. The first question was: “I see in your application you mention the Forum on Patronage and Pluralism. I’ve read the INTO submission and wondered what your thoughts were about their ideas for religion?” The complainant states that she had mentioned the Forum in her application as a current issue in education, and that she said in response that she had read the INTO submission and also the submission of the Irish Human Rights Commission, which referred to children opting out of religion. She also responded by saying that the school was already accommodating children of different faiths and none.
2.6. The complainant was further upset when Sr B. followed this up with the question: “What about the homos?” The complainant responded by saying that there were gay and lesbian teachers already teaching in schools. The complainant states that these questions unsettled and upset her.
2.7. The complainant was unsuccessful in her application. Her union contacted the school’s patron, the Most Rev. Dermot Clifford, to raise the issues outlined above, and received the response that these matters “have been rebutted substantively by the Board of Management”. Nevertheless, an offer was made to the complainant to re-run the selection procedure for a third time. The complainant declined, since at that time the successful candidate was already working in the school, and her trust in the process had been shaken.
2.8. The complainant submits that the above amount to discriminatory treatment on the grounds of age, religion and sexual orientation.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the minor irregularities which occurred in the interview process affected both candidates equally, and that the case Brown v. the Board of Management of Rathfarnham Parish National School, Quirke J held that the procedures in question must “be applied by the Board in substance”, and that “non-compliance with the minute detail of the agreed procedures will not invariably invalidate affected decisions. The respondent therefore disputes that this non-compliance, along with the age difference between the candidates, establishes a prima facie case of discrimination which would be for the respondent to rebut.
3.2. Further with regard to the complaint of age discrimination, it is the respondent’s contention that the complainant simply did not perform well enough during her interview to be successful. The respondent disputes the complainant’s assertion that her qualifications and experience were disregarded, and states that both candidates were awarded equal marks for qualifications and experience.
3.3. With regard to the complaint of discrimination on the ground of religion, the respondent states that Sr B. did not ask the complainant about the INTO submission, but rather about her personal views on the Patronage and Pluralism of the school, as this is a very topical issue. The respondent further notes that the complainant is herself Roman Catholic and submits that she therefore lacks a comparator to show less favourable treatment by the Board of the Catholic National School.
3.4. With regard to the complaint of discrimination on the ground of sexual orientation, the respondent states that Sr B. denies asking any question like “What about the homos?” or making any statements regarding sexual orientation. The respondent also states that the complainant’s sexual orientation was unknown to it.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminatorily treated in terms of access to employment and promotion within the meaning of the Acts.
4.2. 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.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. In terms of the protected grounds of age, religion and sexual orientation under which she filed her complaint, the complainant, who was accompanied to the hearing by her husband, stated that she was born in 1966, is Roman Catholic and heterosexual.
4.5. The complainant stated in evidence that she earned her B.Ed. in primary teaching in 1987 and started to teach in Dublin, but that during the recession of the 1980s, it proved difficult to secure steady employment as a National School teacher. So she emigrated to the United States in 1990 and worked there in the IT industry. She obtained a Master’s degree in Irish Studies, and taught in Boston College and in other contexts. One of her teaching subjects was creative writing. On her return to Ireland, she taught business information systems in UCC and hands-on computer skills to disadvantaged pupils. She stated that her total teaching experience at primary level is 12 years, eight of which she worked at the level of Deputy Principal in the respondent school.
4.6. The complainant further outlined her duties as Deputy Principal. These included maintaining the roll books, serving as treasurer and liaising with the Board of Management – in fact, the complainant was the teacher representative on the Board of Management for the eight years leading up to the competition and interview for the principal position.
4.7. She also related a challenging situation on a day when the former Principal was not available, which she successfully handled: Three children who attended the school were taken into care by social services, while their parent was outside the school in car, so that the entire school needed to be put in lockdown. She stated that she was subsequently involved as a witness in court proceedings in relation to these children.
4.8. The complainant’s successful competitor does not have a primary degree in primary teaching. She obtained a B.A. in Music and Irish from UCC in 2003, and obtained an HDip in Music, Irish and CSPE from the University of Limerick in 2006. In 2007, she obtained a Higher Diploma in Primary Education (first class) from Hibernia College, Dublin. At the time of her appointment to Principal in the respondent school she had four years of teaching experience in a primary school, and two years’ experience as a Learning Support and Resource teacher which pre-date her primary teaching qualification. She does not have any work experience at Deputy Principal level such as the complainant has, nor does she hold a postgraduate degree.
4.9. The respondent does not dispute that a significant age difference exists between the candidates, and that the successful candidate was considerably younger than the complainant. I am satisfied that in conjunction with the significant difference in qualifications and experience which exists between the candidates, and the fact that the interview board saw fit to rate both candidates as equally qualified regardless of this fact, the complainant has succeeded in establishing a prima facie case of discrimination on the ground of age in terms of access to promotion. While I accept that the position of Principal was one for which both outside and inside candidates were entitled to apply, I find that the fact that the complainant was in the employment of the respondent already means there is no case in relation to access to employment.
4.10. The respondent witnesses, who had been the members of the interview board, did not seek to maintain the argument that both candidates were equally qualified in their evidence. The chair of the interview board in particular conceded that the complainant was more qualified. He also stated that interview criteria for the candidates were not drawn up in advance of the interview board meeting to commence the interviews. According to his evidence, the interview board met for the first time one hour before interviews started. I also note in this context the evidence from another interview board member that he threw his interview notes “in the bin when I was renovating my house in the spring”, at a time when the within complaint had already been with the Tribunal since 2012. Sr B., another member of the interview board, stated in evidence that she did the same. These irregularities do not favour the respondent, as it is trite law by now that such actions constitute poor practice in hiring and promotion processes. Last, I wish to note that some of the substantive arguments as to why the complainant’s competitor was preferred for the position seemed to me to have been possibly aligned in advance of the hearing between the board members, as were some other responses as to what was said in the interview, which somewhat limited the credibility of the respondent witnesses for me.
4.11. The respondent’s substantive argument during the hearing of the complaint was that the complainant’s additional qualifications and experience were irrelevant because the only minimum requirement for the role was to be a qualified primary teacher. According to the chair of the interview board, both candidates were given equal marks for qualifications because of this fact. I am unable to accept this argument. If only the basic qualification for primary teaching is relevant in this context, there is no need to award marks – a simple yes/no check would suffice. Second, it militates against common sense that all that is needed to assess candidates for a senior, responsible management position is their basic academic qualification in their field. Furthermore I do not accept that the successful candidates wide variety of experience in music education can be equated with the complainant’s eight years of experience as Deputy Principal when it comes to assessing suitability for the role of Principal. I further note that the respondent did not seek to make any argument that the complainant did not exercise her duties as Deputy Principal to their satisfaction at any point during these years.
4.12. For all of these reasons, I find that the respondent has failed to rebut the complainant’s prima facie case of discrimination on the ground of age in relation to access to promotion, and that she is entitled to succeed.
4.13. I am now turning to the questions which Sr B. allegedly put to the complainant at interview.
4.14. The Tribunal decision DEC-E2007-048, MacGabhainn v. Salesforce.com, establishes clearly that in terms of inappropriate questions asked during job interviews on grounds other than gender, complainants enjoy protections which are equal to those long enjoyed by women in the workforce. Specifically, the Equality Officer noted that
Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation [irrespective of religion, disability, age or sexual orientation] (“the Framework Directive”), was implemented in Ireland by the commencement of the Employment Equality Act 2004. Even if it were the case that age related complaints under the 1998 Act were to be less strictly determined than the original grounds of gender and marital status, without so finding, it is surely the case that the new grounds in the Framework Directive must receive the same level of protection
4.15. Specifically on the protections enjoyed by worker on the ground of religion, I further note that S. (2) of the Employment Equality Acts states that the ground of religion includes “religious background or outlook”. I take this to mean that persons who are converts to a specific faith (“background”) are protected under the Acts, as are specific attitudes which go with a religious belief (“outlook”).
4.16. It was the complainant’s evidence that Sr B. “zeroed in” on the Forum on Pluralism and Patronage in her interview questions. In particular, Sr B. asked the complainant about her personal opinions on the Forum, not how the complainant would envisage guiding the school through a change in patronage or similar. The complainant stated that this made her very insecure, as she had no way of knowing whether her answers would earn her a “black mark” with the respondent’s Board of Management. I further note that any change of patronage is in the gift of patrons rather than staff, so the personal opinions of staff on such a matter are irrelevant to some degree.
4.17. Sr B. accepted that she asked the complainant on her personal opinions on the Forum on Pluralism and Patronage. According to Sr B., she did this because she wanted to ascertain the complainant’s position on the Catholic ethos of the school and to form a general view of her “philosophy of education”. This was despite the fact, as the complainant’s representative put it to Sr B. during her cross-examination, that “philosophy of education” was not part of the interview marking scheme, which Sr B. did not deny. Sr B. explained, in response to a direct question from myself, that she was concerned about what the complainant would do with children whose parents do not want them to participate in the religious programme – half an hour of religious instruction every day, and prayers at the beginning and the end of the school day.
4.18. From the totality of evidence I have heard on this point, it is clear to me that Sr B.’s question did not relate to any specific challenges which the complainant might face as Principal, but was rather asked to ascertain whether the complainant’s personal religious outlook, within the overall context of her Roman Catholic faith, met Sr B.’s notion of what this outlook ought to be to serve the interests of the current patron of the school during a time of change in education policy. While the respondent did not seek to invoke S. 37 of the Acts in its argument, it seems nevertheless appropriate to look at the interview situation in the light of the special rights the respondent, as a religious employer, enjoys under this section. In this regard, I am satisfied that it had no connection at all to broader questions of the ethos of the institution, on which the respondent enjoys a degree of exemption from the requirements of the Acts. Furthermore, I note that absolutely no evidence was adduced by the respondent that any problem about the complainant maintaining the ethos of the school had arisen during her eight-year tenure as Deputy Principal. I am therefore satisfied that Sr B.’s questions are outside of the remit of the exemptions of S. 37 and intrude into the protected sphere of personal belief identified in the Acts as “religious outlook” and that the complainant is entitled to succeed in this part of her complaint.
4.19. In terms of Sr B. asking the question “What about the homos?”, which, according to the complainant, followed on from her question on the Forum on Pluralism and Patronage, I note that both Sr B. and the two other interview board members denied that Sr B. had asked such a question. However, Sr. B. stated in evidence that she did ask the complainant as question on the INTO submission on the Forum, but claimed to remember neither her own question nor the actual contents of the INTO submission. Sr B.’s insistence on her lack of memory stood in marked contrast to her precise recollection on her interview questions relating to educational philosophy, even when the complainant’s union representative put it to her that one point in the INTO submission, and the one receiving an outsized amount of media coverage at the time, related to the situation of GLBT primary school teachers.
4.20. As I noted in paragraph 4.10 above, a variety of circumstances arose which combined to limit the credibility of the respondent witnesses in the course of the investigation, and I prefer the complainant’s evidence in this matter. I am satisfied that Sr B. asked the question “What about the homos?” as quoted by the complainant. The complainant stated in evidence that she was not sure whether she was asked about her own sexual orientation when she heard this, and was very taken aback. She also briefly considered whether Sr B. was asking her what she would do with a gay or lesbian teacher working in her school, and said that she stated in response that gay and lesbian teachers were already working in primary schools all over the country. The complainant stated that she was “floored” by this question, and so flustered overall that the remainder of Sr. B.’s questions after that were a blur for her.
4.21. The respondent argued in relation to this point that as it did not know the complainant’s sexual orientation, discrimination on the ground of sexual orientation could not have arisen. I am unable to accept this, as it is settled law that inappropriate interview questions do not need either a comparator, or specific knowledge on the part of the interviewer as to the position of the interviewee on the protected grounds, to be unlawful. In the case on hand, it is precisely because the interview board did not know Ms A.’s sexual orientation, that I interpret Sr B.’s question as an attempt to ascertain the complainant’s sexual orientation without asking the question directly. Had the complainant been a lesbian woman, this question would have upset her potentially even more than happened to the complainant, and even more seriously limited such a complainant’s potential for success at interview. Accordingly, I am satisfied that Sr B.’s question was unlawful on the ground of sexual orientation, and the complainant is entitled to succeed in this part of her complaint as well.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent discriminated against the complainant on the grounds of age, religion and sexual orientation in terms of promotion to Principal at the respondent’s National School contrary to S. 8(1) of the Acts.
5.2. In accordance with Section 82 of the Acts, I hereby order that the respondent pay the complainant €54,000, which is equal to one year’s salary, in compensation for the effects of discrimination. This award is in compensation for the distress suffered by the complainant and is not in the nature of pay and therefore not subject to tax.
30 December 2014