THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2015-005
PARTIES
Rena Burke
(represented by Michael Francis Forde BL instructed by J.V. Geary Solicitors)
-V-
St. Nathy’s College
(represented by Mason Hayes & Curran Solicitors)
File Reference: EE/2012/215
Date of Issue: 12th February 2015
Keywords
Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment, 6(2)(e) – religion, Section 8 –access to employment / promotion, Section 85A - prima facie case.
1. Dispute
This dispute involves a claim by the above named complainant that she was discriminated against by the above named respondent on the religion ground, in terms of section 6(1) & 6(2)(e), and contrary to section 8 of the Employment Equality Acts in relation the selection shortlisting for the post of Deputy Principal.
Background
The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 11th of April 2012, alleging that the respondent discriminated against her contrary to the Acts. The complainant was granted an extension of time for referring the case by Direction of the Director under Section 77(5) of the Acts on the 26th June 2012. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case on the 30th October 2014 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 21st September 2012 and from the respondent on the 21st December 2012. A hearing on the complaint was held on the 6th of November 2014.
2 Summary of the Complainant's case
2.1 The complainant was employed by the respondent as a teacher from the 1st of September 1987 until she retired in February 2012. In August 1989 she was appointed to a B post position and in August 2003 to an Assistant Principal Post in the school. On the 5th of September 2011, the post of Deputy Principal was advertised by the respondent in the national newspapers. The complainant applied for the post. Following a shortlisting exercise the complainant was not selected to go forward to the interview stage of the competition. The complainant said that she requested clarification from the Principal on the reasons why she was not shortlisted. She was informed that she did not meet two of the seven criteria applied to the shortlisting process: namely that the application was incomplete and it did not show a commitment to the ethos of the school. The complainant said that she rejected the explanation as she had always supported the ethos of the school.
2.2 The complainant then wrote to the Chairman of the Selection Board seeking an explanation of the reasons for not being shortlisted for interview. In his response letter, the Chairman outlined the shortlisting criteria and informed the complainant that she did not meet two of them, her application was not well presented and was not typed and she did not present clear evidence of a commitment to the school ethos as neither the words Catholic or Christian appear in her response to the question about ethos on the application form. The complainant said that she downloaded the application from the school’s website and there were no instructions that it had to be typed. The complainant said that she rejected the assertion in the Chairman’s letter that by handwriting the application she demonstrated a lack of IT skills. She said that she demonstrated her competence in IT in at least 4 sections of the application form where she outlined her roles in IT education and development both in the school and outside. The complainant submitted that she demonstrated throughout her application support for the ethos of the school and even though she did not mention the word Catholic she stated in her application that she was a member of the Pastoral Care Team and a Member of the Parish Council of a Catholic Parish. The complainant submitted that the totality of her application was not taken into account by the selection committee and if it had been, it could not be said that she had not shown support for the ethos of the school. The complainant said that the response to her had the effect of undermining her faith and inferring that her religious faith was insufficient or inadequate for the post of Deputy Principal.
2.3 The complainant’s barrister submitted that her treatment in the selection process was discriminatory treatment on the religious ground contrary to Sections 6(2) and 8 of the Acts. The requirement to cite the words Catholic or Christian on the application form and then the decision to exclude her from the shortlist for interview inferred or had the effect of inferring or suggesting that the complainant’s faith and beliefs and her vision for the school was in some way insufficient or not Catholic enough and wrongly imputed to her a lack or deficiency in respect of her faith. This undermined the values and beliefs of the complainant. He submitted that she was discriminated against on the religion ground on the basis of an unfounded and ill perceived notion that the complainant would not value and promote the Catholic and Christian values of the school.
3 Respondent’s Case
3.1 The respondent denies that the complainant was discriminated against on the religion ground in relation to the short listing process for the post of Deputy Principal. The respondent is a voluntary Catholic secondary school under the trusteeship of the Diocese of Achonry. The College is a recognised school and is governed by a Board of Management pursuant to the Education Act, 1998.
3.2 The position of Deputy Principal became vacant in November 2011 and a competition to fill the post was sanctioned by the B.O.M. The recruitment to the position was carried out by way of open competition in accordance with the Articles of Management for Catholic Secondary Schools and Circular 04/98 issued by the Department of Education and Skills. The position was advertised in a national newspaper and candidates were directed to the school website for information about the application process and a document entitled the Role and Function of Deputy Principal and Deputy Principal – Key Requirements. A selection committee was established by the BOM in accordance with the Articles of Management and consisted of two nominees of the Trustees, two nominees of the BOM and an independent external assessor. There were 12 applicants and a meeting of the selection committee was held on the 21st of September 2011 to shortlist candidates for interview.
3.3 Before looking at the application forms the selection criteria was agreed upon by the Selection Committee. The criteria were as follows:
i A properly completed Application Form, which must be signed
ii Suitable and relevant DES or other qualifications;
a. Dip. In School Management is a minimum requirement.
b. Qualifications must be recognised by the Teaching Council (Ireland).
c. Five years teaching experience.
iii. Relevant Leadership / in school management experience – at least one year
at Assistant Principal or Special Duties Teacher level 9incl. Acting Post).
iv. Evidence of commitment to the school ethos and having a vision for the
school.
v. A practical understanding of the role of DP in terms of the day-to-day management of a school.
vi. Knowledge and critical analysis of educational trends at national level,
including familiarity with relevant legislation
vii Demonstration of a strategic vision for the future.
It was submitted that the twelve applications were examined against the agreed criteria and four were selected for interview.
3.4 The respondent submitted that her application was fairly considered in a transparent and non-discriminatory manner. Following a review of the complainant’s application form the Selection Committee unanimously agreed that the complainant did not submit a properly completed application form and she had not documented in her application evidence of a commitment to the school ethos and having a vision for the school. She did not satisfy (i) and (iv) of the criteria above. The complainant was informed by the Principal, who was on the Selection Board, of the outcome of the selection process on the 23rd September 2011.
3.5 The Principal (Fr. A.) in evidence said that the complainant’s application was in handwriting. While it was unusual to have a handwritten application it was not enough to exclude the complainant’s application, but overall the application form was untidy and difficult to read and did not meet the first criterion. Secondly he said that he would have expected to see in her application form more references to the explicitly religious aspect of the school and how she proposed to inculcate the Christian values of the school in accordance with the Mission Statement. He said that he knew the complainant’s faith is Catholic and that she was committed to the school, but the selection procedures had to be followed and it was not appropriate for him to speak on behalf of any candidate at the selection process.
3.6 The Chairman of the Selection Board said that he was a former Principal of a secondary school and is a very experienced interviewer for Deputy Principal posts for schools in Mayo and has served both as a Chair and an ordinary member on these Boards. He said that he did not know any other members of the selection board, but he had met the Principal of the school on one occasion. He said that the selection procedure was very carefully followed. The selection board met and discussed the role and function of the Deputy Principal as set out in the application process on the school website. From this they drew up the criteria for shortlisting. The applications were then opened and assessed against the criteria. There were twelve applications and four were shortlisted for interview as they satisfied the criteria. The complainant’s application was handwritten and hard to read and poorly presented. The fact that it was handwritten demonstrated to him that she had not got good IT skills and one of the professional skills required for the post was that a candidate must be competent in IT. Furthermore the complainant did not demonstrate in her application a commitment to the Catholic ethos of the school. He said as a Diocesan College there is a requirement for the Deputy Principal to promote the school ethos and culture and the complainant’s response at 4.4(b) of her application form did not fulfil this requirement as neither Catholic nor Christian was mentioned. For these reasons the complainant was not shortlisted for interview.
3.7 It was submitted by the respondent’s solicitor that the complainant has failed to establish a prima facie case of discrimination on the religion ground in relation to the shortlisting selection. He submitted that the complainant is a Catholic and that the successful applicant is also a Catholic and therefore the complainant cannot establish that she was treated less favourably on the basis of a different religion or religious belief. It was submitted that, in circumstances where the complainant has no prospect of succeeding in her claim, the complaint should be dismissed as frivolous and vexatious in accordance with Section 77A of the Employment Equality Acts.
4. Conclusions of the Equality Officer
4.1 The matter for consideration is whether the respondent directly discriminated against the complainant on the religion ground in terms of sections 6(1)(a) and 6(2)(e) of the Employment Equality Acts, in contravention of 8(1) of that Act. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. This requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when the complainant has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
I am now going to consider the evidence in the light of the above and to determine whether the complainant has established a prima facie case.
4.2 Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:
6.—(1) For the purposes of this Act and without prejudice to its
provisions relating to discrimination occurring in particular circumstances,
discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is,
has been or would be treated in a comparable situation
on any of the grounds specified in subsection (2) (in this
Act referred to as the ‘‘discriminatory grounds’’)
Section 6(2)(e) provides that as between any two persons, the discriminatory grounds are, inter alia:
(e) that one has a different religious belief from the other, or
that one has a religious belief and the other has not (in
this Act, referred to as ‘‘the religion ground’’),
‘‘religious belief’’ includes religious background or outlook;
Section 8 provides:
“8(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker.”
(4) A person who is an employer shall not, in relation to
employees or employment—
(a) have rules or instructions which would result in discrimination
against an employee or class of employees in
relation to any of the matters specified in paragraphs (b)
to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would
be likely to result in any such discrimination.”
(5) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to access to employment if the
employer discriminates against the employee or prospective
employee—
(a) in any arrangements the employer makes for the purpose of
deciding to whom employment should be offered, or
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(1) Where in any proceedings facts are established by or
on behalf of a complainant from which it may be presumed that
there has been discrimination in relation to her or her, it is for the
respondent to prove the contrary.”
4.3 The complainant has claimed that she was discriminated against on the religion ground in relation to the competition for Deputy Principal. The respondent denies that the selection process was discriminatory against the complainant. They submit that the successful applicants at the shortlisting selection process had satisfied all aspects of the criteria and that their applications were typed.
4.4 In order for the complainant to ground a complaint of direct discriminatory treatment, she must show that the treatment complained off, in relation to the selection process, was less favourable treatment on the religion ground than that afforded to the applicants who were of a different religion to her. I note from the evidence of the Chairman of the Selection Committee that the criterion: evidence of commitment to school ethos and having a vision for the school, meant that an applicant would have to have demonstrated on the application form a commitment to the Catholic ethos of the school and to demonstrate how as Deputy Principal they would foster that environment in the school. It was submitted that the complainant failed to demonstrate this criterion to the satisfaction of the Committee. I note that the complainant is Catholic and she submits that one of the reasons given to her for not shortlisting her implied that she was not a Catholic or a Christian and this was discriminatory treatment. There was no evidence put before me that any of the four shortlisted applicants was of a different religious faith or had different religious beliefs to that of the complainant. I am satisfied from the evidence that the selection committee did not impute a different religion to the complainant other than the one she held. Therefore the complainant has failed to establish that she was treated less favourably than applicants of a different religion or religious belief.
4.5 In relation the complainant’s complaint that she was not shortlisted because her application was in handwriting, it is clear to me that the selection committee were of the view that it did not meet the criterion that that the application must be properly completed and hence the reason for not shortlisting her. I find that the complainant has not established any nexus whatsoever between the religion ground claimed and the treatment. I find therefore the complainant has failed to establish a prima facie case of discriminatory treatment on the religion ground.
5. Decision
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent did not discriminate against the complainant on the religion ground pursuant to section 6(2)(e) in terms of section 8 of the Acts in relation to the shortlisting process for the post of Deputy Principal.
___________________
Marian Duffy
Equality Officer
12th February 2015