ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00018053
BOM Scoil Mhuire agus Iosaf Junior School
Noreen Brennan Donoghue
Paul Rochford MASON HAYES & CURRAN
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 07/05/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
In her complaint form the claimant submitted as follows:
First I was discriminated against on the basis of my family status. While on maternity leave 1st December – 5th June, the position of acting principal & therefore acting deputy principal arose on January 25th. I hold the post of deputy principal (on a privileged basis) in the school and would be the most senior suitable person to act up. I was not notified of this change This violated my conditions of employment while on maternity leave. Circular 11/2011 17.1 A teacher absent on any of the leave types covered by the terms of this chapter should be notified regarding vacant Posts of Responsibility which are to be filled in the school. Therefore I was denied the opportunity to gain principal’s experience in preparation for promotion in favour of another colleague. I believe I was discriminated against on basis of gender also as a male colleague was put in the acting **deputy principal position without notifying me and indeed ahead of two other of his more senior female colleagues also.
Subsequently this male colleague was interviewed for the principalship on July 17th along with myself and has since been appointed principal on 1st August despite a lesser amount of teaching or management experience within the school than myself. I believe I have been clearly discriminated against with regards to promotion for reasons of gender and family status and not promoted on the basis of relevant qualifications, competencies and experience as is appropriate. When asked for an explanation as to how this appointed candidate outscored me at interview I did not receive one. I also received an unsatisfactory explanation in relation to why my marks were changed after they had been totalled by the chairperson. **N.B Although my colleague was acting Deputy Principal on paper as indicated by Chairperson BOM, he was indeed not teaching his class and in the office two days per week between 25th January - 23rd March 2018 and then full time when school resumed after Easter, on 9th April until 5th June 2018. Therefore he was fulfilling the principal’s role in an albeit unofficial capacity during this time. A position that I was eligible to return to on March 9th had I been notified. I have attached copies of correspondence in relation to my complaint also I wish to refer this complaint to the Workplace Relations Commission having exhausted all internal avenues within the school.”
The claimant presented a chronology of the exchanges of correspondence with the school dating back to her notification to the Chairman of the Board in April 2018 of her early return to work from maternity leave to fulfil the role of acting deputy principal.
In the claimant’s letter (10.08.18)to the BOM Chairman objecting to the outcome of the interview process, the claimant submitted that she had been discriminated against by not being notified of the acting principal vacancy .She submitted that there was a conflict of interest on the part of Panel Member 3 , by virtue of her position as adviser to the BOM when the successful candidate was a member of the Board. She complained about hearing the outcome of the interview process via local chat on the golf course. She complained about the marks awarded to her and the changes to the marks on her marking sheet .She sought to have the post readvertised.
In her direct evidence the claimant asserted that there was no justification for the marking by the Selection board, given her qualifications and experience and questioned how the successful candidate could have scored higher than her in 9 of 10 the criteria adopted by the Board. She asserted that the non notification to her of the vacancy in January 2018 was absolutely connected to the outcome of the interview process favouring Mr.X over her. The claimant and her representative questioned how the Selection Board measured the “ contribution to Catholic ethos”.
In response to the respondent’s assertion that the claimant’s first complaint was out of time, the claimant stated she only became aware of the appointment of Mr.X in an acting capacity when she was notified by the school in late March 2018, that he would no longer be teaching her child. She stated that she knew his appointment would have to go to investigation. She asserted that she went about enquiring about the appointment as speedily and diplomatically as possible and she went back to work early to remedy the wrong that had been done .She argued that therefore she did take steps on learning about this appointment and it took time for her to check it out which also involved communicating with her union the INTO. The claimant’s representative submitted that in such circumstances , the claimant’s complaint would have to be deemed to have been in time as it was received by the WRC by the end of August 2018.
In a written submission to the WRC the claimant took issue with a significant number of what were presented as inaccuracies in Mr.X’s CV. She submitted that Mr.X had 7 years accredited service while he claimed to have 10 on his CV. She submitted that she would have been unaware of the corrupt practise whereby Mr.X was appointed acting up only that she heard of it by way of a note to sent home through her own child.
The claimant submitted that Mr.X gained all of his experience in leadership and management over a period of 4 months with the support of the BOM. She submitted that the BOM designated a number of important projects to him at that time and contended that she was not afforded these opportunities upon her return. The claimant challenged a number of the experiences referred to in Mr.X’s CV and argued that credit was not given to her for her experience.
The claimant sought information on the gender of the other 2 candidates for the Principal’s post – the respondent clarified they were male candidates and submitted their score sheets and interview notes to the WRC. The claimant submitted that Mr.X was “marked up in 9 out of 10 areas despite nothing substantial in his application form to support this”. The claimant questioned how he was deemed more qualified to compete for the job having never held a “ leadership and management post”.
The claimant submitted that she had carried out the role of Learning Support Co-Ordinator prior to the amalgamation of the schools for 4 years and since the amalgamation for a further 5 years. She argued that the role which involved liaising with a diverse group of health professionals and SNA’s and her role as resource teacher for travellers was overlooked and submitted that she was deemed inferior to a candidate who spent a “few months here and there in Special Education as part of his training”. The claimant took issue with Chairman of the BOM assertions with respect to her alleged shortcomings on the matter of vision and she advised that she offered a school plan at her interview but the panel declined to accept it. The claimant asserted that she did not know how Mr.X was deemed qualified to be interviewed for the position given that the only relevant experience he had was from the 25th.Jan – 1st.June 2018.The claimant submitted that Mr.X was deemed eligible to be interviewed “ never having held a leadership and management post such as deputy principalship like myself or indeed any post of responsibility for that matter except for his time of acting up last year”.
The claimant submitted that it was extraordinary for Mr.X’s area of expertise namely art and music to feature as desirable in the short listing criteria for the position of administrative principal. While not denying the benefits of these subjects in the classroom , she argued that they were not relevant to a position of administrative principal.
The claimant further submitted that she was not called for interview by the Chairperson for principalship in another school in 2009 “despite having held the post of Deputy Principal of the then 3 teacher school for 2 years”.
On the 2nd.September the claimant’s representative replied as follows to the respondent’s correspondence of the 27th.Aug. 2019:
“In response to the letter from Mr. R dated 27th August 2019 I wish to make the following responses.
(a) The inclusion of music and art was not in the advertisement for the post. It is up to the adjudicator to decide what is relevant or not in relation to discrimination against me, not Mr. R or the Chairman of the Board
(b) Again, it is up to the adjudicator to decide what is relevant or not in relation to discrimination against me, not Mr. R or the Chairman of the Board.
(c) Of course, the decision not to shortlist me for an interview in 2009 is relevant as a male candidate was appointed to the post of principal, while I, the female deputy principal at the time did not even get an interview. The involvement of the Chairman of the Board who was, 10 years ago in 2009, Chairman of the Board of Management shows a clear preference for male candidates.
We are glad to see that the respondent is admitting bias towards female candidates as he has to point out that the two members of the interview panel in 2019 are not biased. This is not a defence that he was not biased, this is an admission that he was.
We are somewhat confused to the last sentence regarding the independence of the other two members of the interview panel. It became very clear at the hearing that Panel Member 3’s independence in the interview process was questionable.
We are surprised at the accommodation that is constantly afforded to the Chairman of the Board and his solicitor Mr. R in relation to questions set by the adjudicator as they have shown total disregard and disrespect for the tribunal since day one of the process. We are sure we do not need to remind the adjudication officer of this”.
Summary of Respondent’s Case:
The respondent denied any discriminatory treatment of the claimant with respect to not being advised of the vacancy for Acting Deputy Principal and with respect to discrimination on the basis of gender or family status in not being selected for the post of Principal on the 1st.August 2018.The respondent submitted that the claimant’s complaint with respect to the Acting Deputy Principal post was out of time as the filling of the post by the claimant’s male colleague took place on the 25th.Jan. 2018 and the claimant’s complaint was not received by the WRC until the 30th.August 2018.It was submitted that the claimant had communicated that she was aware of her colleagues appointment by the 29th.March 2018 and consequently had ample time to file her complaint within the 6 month time frame allowed for by the legislation and had not done so. It was submitted that it was settled law that the relevant date to be considered is not when the claimant gained knowledge of the act but on the date “of occurrence of the discrimination”. It was submitted that the claimant had advanced no reason for the delay in making the complaint .
The respondent set out a chronology of the claimant’s career history and submitted that by virtue of the claimant’s status as Deputy Principal in her former school prior to the school amalgamation, the claimant “ retained her allowances and other entitlements as a Deputy Principal on a personal to holder basis rather than retaining the rights and privileges of a deputy Principal as she has asserted in her complaint”.
It was submitted that the Board of Management – hereafter referred to as BOM – moved to fill the vacant Principal’s post in Jan 2018 in an acting capacity as it was unclear whether or not it would be necessary to fill the post on a permanent basis. Ms.G was appointed as Acting Principal and Mr.X as Deputy principal – the post had been turned down by 2 female colleagues. As both Ms.G and Mr.X had normal classes to teach , each one took a day out of the classroom to look “ after the administrative duties related to the school”. Shortly after this the BOM decided that it would be preferable for Mr.X to take on full time admin. duties as Ms.G’s class contained students with special needs and Ms.G signed off on all matters requiring the approval of the school Principal. These developments were announced just before the school’s Easter break on the 29th.March 2018.The claimant wrote to the BOM on the 23rd.April 2018 indicating that she wished to return 2 weeks early from maternity leave on the 5th.June at which point the role of acting Deputy Principal was given to the claimant.
The respondent set out a chronology of the events leading up to the recruitment of a permanent Principal. The selection board included the Chairperson of the BOM, School Principal Panel Member 1 and retired School Principal Panel Member3 .
Following interview the Board selected Mr.X, with the claimant finishing second ahead of 2 other male candidates. The claimant scored 249 marks while the successful candidate scored 273.
The claimant wrote to the BOM on the 1st.Aug. 2018 objecting to the appointment alleging that:
She was not advised of the earlier acting appointments , other individuals in the community were aware of the outcome of the process before she was ; that there was a conflict of interest between Panel Member 3 and Mr.X as Panel Member 3 had previously advised the BOM when Mr.X was a member of it - lending an advantage to Mr.X; that the marks awarded during the interview process had been altered and that there was no basis for the marks awarded given the claimant’s experience and capability. The ensuing correspondence exchanged between the parties was submitted into evidence.
The respondent denied any discrimination on the grounds of family status or gender with respect to the post of Acting Deputy Principal and submitted that the claimant in her arguments was ignoring the context in which the vacancy arose – it was submitted that the original Principal was absent on administrative leave and nobody including the BOM was aware of how long the Principal was likely to be off. It was submitted that consequently the post was not vacant “ as contemplated by Circular 11/2011 “which had been invoked by the claimant in support of her position.it was submitted that the BOM were “ filling a temporary requirement from staff available in the school. It satisfied itself through consultation with the Dept. of Education that the above circular did not apply in the circumstances”. In the course of the hearing , the respondent asserted that additionally the BOM had consulted with the relevant trade union and were satisfied that their actions were appropriate in the circumstances.
It was contended that short term appointments to acting posts of responsibility were governed by Circular 70/2018 and that the circular provided a distinction being drawn between short term and long term appointments. It was submitted that the decision not to notify the claimant of the temporary acting up requirement was not in any way related to the claimant’s family status but “rather based on an emergency situation requiring immediate action”. It was contended that while the requirement to fill the acting post arose in January 2018 , the claimant stated that she would not have been available to undertake that role until the 9th.March 2018.When the claimant became aware of Mr.X’s appointment to the post of Acting Deputy Principal at the end of March 2018 , she did not indicate her intention to return to work until the 23rd.April 2018 with a return date of the 5th.June 2017.” It was contended that in other words the claimant took no action in relation to this situation until after she returned to work. It was advanced that the claimant could not now seek to remedy an alleged wrong that she herself took no steps to remedy at the time it arose. It was submitted that the claimant had ample time to bring a complaint to the WRC and that the complaint was now out of time.
It was submitted that the claimant alleged gender discrimination by virtue of the fact that Mr.X was appointed Deputy Acting Principal ahead of the claimant and 2 female colleagues – it was submitted that it should be noted that the acting post was offered to the 2 female colleagues in the first instance as they were more senior to Mr.X but both teachers had declined the offer. It was submitted that in any event the matter was out of time as the event took place on the 25th Jan.2018 and the complaint was not received until the 30th August 2018.
It was submitted that the central point of the claimant’s allegation of discrimination on the grounds of gender and family was that the claimant was not promoted on the basis of her relevant qualifications, competencies and experience which she asserts were superior to those of the successful candidate. It was submitted that the BOM observed in full the Dept. Procedures for the appointment of Principal Teachers. It was submitted that the procedures require each member of the Selection Board to complete his or her own individual marking sheet and maintain notes of the interview with each candidate. It was advanced that the marks were given based on each individual’s performance on the day of the interview and that “the reality is that performance at interview is the main factor in most promotion selection processes and that whether that is appropriate or not has no bearing on the issue of discrimination in this case”. It was submitted that it was evident that none of the criteria used could be identified as being directly or indirectly discriminatory. No questions were asked or statements made that indicated that the claimant’s gender was an issue. The notes indicated that periods of acting by the claimant or the successful candidate were not referred to by the Selection Board contrary to the assertions by the claimant that they were a central factor in the decision making process.
The respondent invoked the provisions of Mitchell v Southern Health Board in relation to the legal and evidentiary burden on the claimant. It was contended that in DEC-2006-014 the Equality Officer found that it was “ not of course the Tribunal’s function to identify the most successful candidate but to examine whether the selection process was tainted by age discrimination”.” It was held that the bare act that a successful candidate is younger than the complainant is not sufficient to shift the evidential burden of proof. The respondent submits that the same is true in this case in relation to gender”.
The provisions of EDA007/2007 were invoked in support of the respondent’s contention that the fact that a complainant alleges that they have greater skills or experience than the successful candidate is not sufficient to raise an inference of discrimination.
It was contended that in this case, the successful candidate performed better at interview than the claimant. Gender was not a consideration and a fair assessment was carried out.
It was submitted that the claimant could point to no facts in relation to the selection process that might give rise to an inference of discrimination other than her opinion that she was more qualified and had greater experience than the successful candidate. It was submitted that the scoring scheme and questions were gender neutral. The fact that Mr.X was appointed and the claimant was not , did not establish a prima facie case – which is a requirement to shift the burden of proof.
On the 21.02.2019, the respondent submitted a copy of Mr.X’s CV as well as the marking sheets and interview notes for the other 2 candidates.
On the 21.03.2019, the respondent wrote to the WRC questioning the relevance of the claimant’s request for details of the applications from Candidates 2 & 4 and submitting that the application forms were used solely to determine the screening of candidates for interview.
In his direct evidence the BOM Chairman submitted that he had been conducting interviews since 1973 and that he treated all candidates equally. He stated that the selection panel had devised 12 questions in total with 2 questions being put at the end of the interview and that the board had spent an hour devising the questions. In response to questions regarding the paucity of his notes with respect to the claimant ‘s answers, the chairman said his recollection was that the claimant could have given a much broader vision when questioned on the matter. He stated that the selection panel took notes of what they needed to take and submitted that his notes on Candidates 4 interview were equally brief. He said this was his style. The Chairman stated that the marking sheet was completed as each candidate left the room. He asserted that each panel member completed the sheet and added it up. If there were any changes to the marking they were altered on the spot. The chairman could not recall why he reduced the claimant’s marks on “school and community” by 2 marks from what appears to be 9 to 7 and the consequential reduction in her overall marks from 88 to 86.
In her direct evidence Panel Member 1 stated that the process was a “Comparative Process” and while acknowledging that the Chairman marked the candidates when they left the room, she and Panel Member 3 filled the sheets at the end of the process. She stated that she changed her marks awarding the successful candidate 10 rather than 8 marks for relevant experience when she reflected on her notes. She stated that the entire process took place over the course of one day and that the candidates marks were based on the interview. Ms.M said that she did not question the marks of the other panel members.
Panel Member 3 in her evidence sated that she listened to all answers, took notes and at the end made judgements on what she heard. She stated that she felt the successful candidate was very convincing. She said that from memory the successful candidate gave a full account on Special Education and mentioned that he had done a course on Special Education. She referred to the successful candidate having done a year in an autism school in Sligo. She asserted that the Chairman of the Board posed the questions to the candidates on their CV’s. She denied any prior relationship with the successful candidate.
The following points were clarified by the respondent’s representative in correspondence to the WRC dated the 28.08.2109:
“The inclusion of music and art as desirable criteria in the advertisement for the post: the
inclusion of these criteria in the advertisement for the post is not and cannot be relevant to the question of whether or not the Complainant was discriminated against on the grounds of gender.
(b) The fact that at interview the Complainant offered a school plan but that this was not accepted by the Board: again the Respondent is of the view that this particular point is not and cannot be relevant to the question of whether or not the Complainant was discriminated against on the grounds of gender.
(c) The fact of whether or not the Complainant had been shortlisted for a competition which took place, in 2009 (rather than 2011 as perhaps had appeared in some of the documentation) again is not and cannot be relevant to the question of whether or not the Complainant was discriminated against on the grounds of gender in this competition. The Respondent wishes to remind the Adjudication Officer that although the Complainant alleges that the BOM Chairman was involved in the earlier competition, the two other members of the interview panel in the competition at issue in this complaint were not only not involved in the earlier competition but were also independent of the School and its Board of Management.”
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Preliminary Matter of Jurisdiction on the Complaint regarding discriminatory treatment on the grounds of family status and gender.
The claimant’s first complaint is that she was discriminated against on the basis of her family status and gender by the respondent in failing to notify her of an acting up opportunity when the position of acting deputy principal arose in the school on the 25th.January 2018.The claimant argued that this violated her conditions of employment while on maternity leave and denied her “ the opportunity to gain principal’s experience in preparation for promotion in favour of another colleague”. The respondent contended that this element of the complaint was out of time as the filling of the acting post took place on the 25th.January 2018.It was submitted that the complaint was not filed with the WRC until the 30th.August 2018 and that as a consequence the complaint was out of time. It was submitted that it was settled law that the relevant date to be considered was the date of occurrence of the discriminatory act.
The claimant contended that she was unaware of the filling of the post until late March 2018 when she was advised that Mr.X would no longer be teaching her child arising from his appointment to act up. She contended that consequently the complaint was in time as she had until the end of September to file her complaint with the WRC.
Having considered the submissions of both parties , I accept the contention of the respondent that the relevant date is the date upon which the discriminatory act arose and that consequently there was a requirement on the claimant to file her complaint before the 25th.July 2018.The claimant submitted that additionally the delay in making the complaint arose from her having to investigate the matter and obtain advice from her trade union the INTO.
In Cementation Skansa Ltd.v Tom Carroll DWT 0338 the Labour Court set out the standard to be applied in determining reasonable cause for the delay in making a complaint. On the basis of the evidence presented by the claimant I cannot accept that she has met the test for reasonable cause set out in DWT0338 and consequently I have no jurisdiction to investigate this element of the complaint .
Section 85a of the Act requires that claimants discharge a burden of proof in equality cases …..
“… 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 him or her, it is for the respondent to prove the contrary”. In Melbury v Valpetters (EDA 917), the Labour Court determined that mere speculation or assertions , unsupported by evidence , cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The burden of establishing the primary facts is placed squarely on the complainant and the language of Section 85A admits no exceptions to this evidential rule”.
The claimant’s representative submitted no evidence to demonstrate that the successful candidate in the competition for school Principal was of a different family status. In such circumstances I must conclude that the claimant has not discharged the burden of proof required to raise an inference of discrimination on any of the grounds of family status and accordingly I am not upholding the complaint of discrimination on the grounds of family status .No evidence was advanced in the context of the complaint regarding promotion with respect to training and accordingly I find the claimant has not discharged the burden of proof required to raise an inference of discrimination with respect to training.
I set out hereunder my consideration of complaint of discriminatory treatment on gender grounds.
The second strand of the claimant’s complaint is in time – she contends that she was discriminated against with respect to promotion for reasons of gender and family status and was denied promotion on the basis of her relevant qualifications competencies and experience.
I have considered the entirety of the evidence presented by the parties and am satisfied that the claimant had higher qualifications and more relevant experience than the claimant for the position of School Principal. The claimant had an Honours B. Ed Degree and a Higher Diploma while the successful candidate had a BA in English and Philosophy and a Higher Diploma. The claimant had 12 years accredited service as a primary teacher while the successful candidate had 10 years according to his CV ; 7 years according to the claimant .The claimant had 5 years experience as a Deputy Principal while the successful candidate acted as Deputy Principal from the 25th.Jan. 2018 to 02.2018 and shared acting Principal duties for approx. 4 months to the 5th.June 2018 when the claimant returned prematurely from maternity leave. In forming the view that the claimant had superior qualifications and experience to the claimant, I have had regard to the provisions of Circular’s 63/2017 & Circular 70/2018 which cover Leadership and Management in Primary Schools and describe the role of Deputy Principal as occupying “ a position of vital importance within the senior leadership team in a school”.
I note in the marking sheets submitted by the respondent that the claimant’s combined score for relevant qualifications was 28 marks. The successful candidate’s combined score for relevant qualifications was 30 marks. The claimant’s combined marks for relevant experience was 24 marks. The successful candidates combined marks for relevant experience was 29 marks.
I further note that the respondent has offered no plausible explanation as to why the selection panel in determining the criteria for shortlisting for the Principal post provided for the successful candidates subjects of music and art being desirable.
The criteria in the respondent’s own documentation were set out as follows:
“Criteria for short – listing for position of Principal.
Essential Criteria- application form fully completed in accordance with instructions on application form
Probated + Teacher council res
5 years (min) classroom experience
Leadership professional education
Extra curriculum – music, art is desirable”
The post at issue was an administrative principal’s post. It is noteworthy that no explanation has been proffered as to the justification for identifying these 2 particular extracurricular criteria as desirable for an administrative principal’s post. The inclusion of these criteria clearly favour the successful candidate over the claimant who teaches generic subjects and in respect of whom no extra curricular criteria were identified. I am satisfied in the absence of any plausible explanation for this from the respondent that an inference of a predisposition to the successful candidate can be drawn.
While I acknowledge that the first strand of the claimant’s complaint with respect to the acting up position has been dismissed because of time limits, I consider it noteworthy that the school’s failure to notify the claimant of the acting vacancy is inconsistent with best practise in the public sector. While failure to notify the claimant of the vacancy may or may not amount to less favourable treatment , it may be a factor from which an inference of discrimination can be drawn.
Taking all of the foregoing into account and in light of my conclusion that the claimant had superior qualifications and more relevant experience than Mr.X and given that the successful candidate was male, I am satisfied that the claimant has made out a prima facie case of discriminatory treatment and accordingly the burden shifts to the respondent to prove on the balance of probabilities , that there was no discrimination. I believe this is consistent with the provisions of Wallace v. South Eastern Education and Library Board NI 38.
As the Labour Court have reiterated in numerous equality law decisions, it is not a matter for the WRC or the Labour Court to determine who was the most meritorious candidate for the disputed position. The role of the WRC is to establish if the selection was tainted by unlawful discrimination.
I consider the instant case has similar features to EDA0715.Here the Labour Court determined as follows in relation to the burden shifting to the respondent:
“Article 2 of Directive 2002/73 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on the grounds of sex. It is well settled that in interpreting national law the Court must do so in light of the wording and purpose a Directive so as to achieve the result envisaged by the Directive (seeMarleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135).
It is therefore necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on her gender.
When the burden of proof shifts to a Respondent there are a number of factors which should be taken into account in deciding if that burden has been discharged. Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (seeBarton v Investec Henderson Crosthwaite Securities IRLR 332 and the decision of the Court of Appeal for England and Wales inWong v Igen Ltd and othersIRLR 258).
Secondly, The requirement to establish that there was no discrimination whatsoever means that the Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (seeNevins, Murphy, Flood v Portroe Stevedores 16 ELR 282). Finally, inWong v Igen Ltd and othersPeter Gibson LJ considered the scope which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.
Determination Having carefully considered the submissions, the evidence and the arguments advanced by the Appellant the Court finds that the University has not sufficiently far advanced its case to discharge the probative burden placed upon it. It has not discharged the onus on it to prove that, on the balance of probabilities, the failure to appoint the respondent to the position of Associate Professor was in no way tainted by discrimination, whether conscious or unconscious.
I have examined if the selection criteria was objective and free from any discriminatory taint. I have also considered the submissions of the respondent and the direct evidence of the selection panel. A number of inconsistencies and anomalies have emerged from that process.
Contradictory evidence was advanced by the panel members in relation to when the marking sheets were completed with the Chairman asserting they were completed after each candidate left the room while the other panel members indicated that the marking sheets were completed at the end of what was described as a comparative process and based on the notes they took during the course of the interview. The chairman was unable to offer an explanation for reducing the claimant’s marks by 2 points and defended the paucity of his notes on the claimant’s answers with the limited notes he took with respect to candidate 4.For the purposes of this exercise the claimant was comparing herself to the successful candidate and that is the focus of this investigation. The notes establish that the Chairman took significantly more notes of the successful candidates answers. The Chairman’s notes record 3 words with respect to the claimant – Leadership, Administration and Vision. In his direct evidence, the Chairman suggested that the claimant fell down with respect to “Vision”. This is not supported by the notes of Panel Member 1. I found the evidence of the Chairman to be unconvincing and inconsistent.
The respondent repeatedly asserted that the sole determining criteria for selection was performance at interview – this is not consistent with the notes submitted by panel members. No questions were directed at either candidate in relation to their qualifications and or experience nor were any such questions included in the list of questions submitted into evidence in the respondent’s booklet. Accordingly, I am obliged to conclude that the application forms/CVs must have been considered in determining marks for these 2 criteria. It is significant that these 2 criteria are measurable and objective and that their combined points favoured the male candidate while on paper the claimant’s qualifications and experience are superior to the male candidate.
The claimant submitted that the male candidate scored better than her in 9 of the 10 criteria not withstanding her qualifications and experience. She asserted that the interview panel were predisposed towards the male candidate.
Panel member 1 altered the claimant’s marks by one point – in favour of the claimant – she indicated that she would have altered the score on a review of her notes. The same panel member increased the successful candidates marks for experience by 2 points.
The Chairman altered the claimant’s marks to her detriment by 2 points and could not recall the basis for doing so.
Panel member 3 submitted that the successful candidate gave a convincing performance at interview and remarked on his training in Special Needs and his role as member of the Board of Management. The claimant has argued convincingly that she had specific responsibilities for the Co-Ordination of learning Support Special Needs service and pupils and that she also served for a number of years on the Board of Management.
I have reviewed in detail the notes taken by the panel members and cannot establish how the chairman awarded his scores in the absence of notes – apart from 3 words – with respect to the claimant’s interview. I am not satisfied that the comprehensive notes taken by the other 2 panel members support the marks awarded by them particularly with respect to the more objective criteria areas of qualifications and experience. I do not accept the respondent’s assertion that the candidates CV’s /application forms did not feature in the selection process for the reasons already outlined. In this regard, it is noteworthy that the successful candidate placed considerable emphasis on his 4.5 months of acting up experience in 2018 in his application for the post.
On the basis of the foregoing findings , I have concluded that the respondent has not provided convincing and transparent rationale for their scoring .The respondent has failed to provide cogent evidence to rebut the inference of discrimination and accordingly I find on the balance of probabilities that the process was tainted with discrimination on gender grounds .Consequently I am upholding the complaint. I believe my findings are consistent with the principles set out by the Labour Court in EDA039 Daughters s of Charity & Martha McGinn and EDA051 Portroe Stevedores and SIPTU and EDA 1515 – A National School v A Worker.
The maximum compensation that can be awarded is set at 104 weeks remuneration - in the instant case €124,664.In considering the remedy , I have had regard to the principles set out in Von Colson and Kamann v Land Nordrhein -Westfalen 1984 ECR 1819 and note the requirement for compensation that is effective , proportionate and dissuasive- the sanction is required to have a real deterrent effect. I require the respondent to pay the claimant compensation of 78 weeks remuneration amounting to €93,498 for this breach of her rights under the Act.
Dated: 19th September, 2019
Workplace Relations Commission Adjudication Officer:Emer O'Shea