ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025417
Parties:
| Complainant | Respondent |
Parties | Garry Simpson | Colaiste Pobail Setanta |
Representatives |
| Niamh Ní Cheallaigh IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00032278-001 | 17/11/2019 |
Date of Adjudication Hearing: 24/02/2020
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, andSection 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is a teacher and was employed with a school from 8th January 2018 until 30th August 2019. |
Summary of Complainant’s Case:
The Complainant claims he has been discriminated against by his employer due to his age. The Complainant was a mature student when he trained to become a teacher. He was 46 years old when he qualified in 2016. He began teaching in the Respondent school near to his home in January 2018. He successfully completed two contracts and three interviews. The Complainant says he should have been offered one of three roles advertised in June 2019 with a contract of indefinite duration under Circular 24/15. The school director later admitted the Complainant was entitled to a contract of indefinite duration in his email. The Complainant believes the school principal is biased against him, has a history of discrimination and prefers younger female teachers. Instead of offering the Complainant a teaching job at the Respondent school nearby, the school director offered redeployment to another school which was farther away. This is despite the fact a vacancy was available at the Respondent’s school. The Complainant’s job and timetable was given to a much less experienced female teacher in her 20’s who had not worked in the Respondent school previously. Another female teacher in her 20’s was offered the other job, she had not taught in the Respondent school. There was a third role available to cover a colleague who went on maternity-leave in May 2019. This role was not advertised until 18th September 2019. The Complainant says the school director was aware of the third role when he offered the Complainant redeployment to another school and he should have received a contract of indefinite duration then. This is evidence of bias against the Complainant due to his age. The Complainant has excellent references from the Respondent. The Complainant was invited to a fourth unnecessary interview on 12th June 2019, the principal was a member of the three panel board and marked the Complainant down. The Respondent has failed to provide the Complainant’s interview scores to him. The last act of discrimination took place on 30th August 2019. |
Summary of Respondent’s Case:
The Respondent says the Complainant was appointed to a five month temporary post on 8th January 2018 until 1 June 2018. He was reappointed to a one year fixed-term contract post in September 2018 which ended on 31 August 2019. Teachers are appointed under the terms set out in Circulars 24/15 and 59/16 by the Department of Education. Under Circular 24/15 eligibility for a contract of indefinite duration is established where there is an offer of employment for year three which will carry the qualified teacher over the threshold of in excess of two years continuous employment in a post which is viable for a reasonable period and does not relate to temporary cover. The Complainant was unsuccessful in his application for a whole time maths role. The Complainant maintains he was fully qualified however, he was not registered as a fully qualified maths teacher with the Teaching Council. The successful candidate declined the post. The Respondent transferred a permanent wholetime maths and science teacher to the Respondent school from September 2019. The Complainant’s maths fixed-term contract was no longer a viable vacant post for 2019/2020. The teacher appointed is 59 years of age with 31 years teaching experience. The Complainant applied for a maths and science post in June 2019 and was not shortlisted as his qualification was science and biology. The successful candidate is 23 years old and she is qualified in science and maths. Following representations from the Complainant’s union in August 2019 in relation to awarding unassigned fixed-term hours to the longest serving fixed-term teacher under Circular 59/16 the Respondent consulted with schools to ascertain if there were any available maths, science or biology hours. In September 2019 a temporary maternity-leave cover maths role was advertised. There was one applicant who was not appointed. A teacher with a contract of indefinite duration was temporarily reassigned from another school due to a colleague returning from a career break. Eighteen unassigned maths hours were identified in another school and the Complainant was informed. He was advised to meet with the school and discuss a timetable. There was no need for an interview as the hours were unassigned and the Complainant was the longest serving fixed-term worker in line with Circular 59/16. The Complainant met the principal in September 2019 and did not opt to take up the hours offered. In October 2019 the Complainant contacted the principal but declined 15 hours offered due to a personal situation. The Respondent says the Complainant has not established a prima facie case of discrimination and relies on Southern Health Board v Mitchell [2001] ELR 201 and Margetts v Graham Anthony & Company Ltd EDA038. “The first requirement is that the claimant must establish facts from which it may be presumed thatthe principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”. The Respondent submits that direct discrimination must consist of both less favourable treatment of the Complainant and the existence of age grounds for such treatment. There is no evidence of less favourable treatment. The Complainant applied for three maths roles in the Respondent school at 2018/19 and was unsuccessful due to objective reasons as not having a maths qualification and not as much experience as other candidates. 2 out of 3 of the candidates are not similar age but this is not proof of less favourable treatment. The Respondent submits the burden of proof has not shifted to the Respondent as a prima facie case of discrimination has not been established. EC Directive 2000/78/EC recognises that differences in treatment in connection with age maybe justified by member states in certain circumstances, and discriminatory treatment directly based on age is permissible subject to objective and reasonable justification and where the means of achieving these aims are appropriate and necessary. The Complainant applied for 2 maths roles. He was not shortlisted for one role due to his lack of maths qualification then. He was interviewed for 1 other role but after a fair and objective process was unsuccessful. The Respondent had an objective and legitimate aim of ensuring the most qualified and experienced teacher was appointed to each role which does not amount to discrimination. |
Findings and Conclusions:
I have considered carefully the oral and written submissions of the parties. The Complainant alleges that he has been (i) discriminated against due to his age in terms of S6 (2) of the Employment Equality Acts 1998-2015 and (ii) in dismissing him for discriminatory reasons. The Complainant was employed by the Respondent from 8th January 2018 to 30th August 2019. He taught science and biology for 15 hours. In 2018 he was offered an additional 15 hours maths in 1st September 2018 until August 2019. A maths teaching role for 2019 was advertised in June 2019 and he attended an interview on 12th June 2019. The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that: “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.” Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent. S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. Age discrimination may occur where the individuals are of different ages. The Complainant alleges age discrimination in the selection process which took place on June 2019. He alleges discrimination in the interview process and systemic discrimination in the allocation of contracts of indefinite duration by the school. No evidence or statistics were adduced by the Complainant in support of his complaint of systemic discrimination. The Respondent says seventy or eighty percent of staff are either permanent or hold contracts of indefinite duration, and denies a high turnover of staff. There were 3 participants in the selection panel for maths teacher in June 2019 including the Principal. Consensus marking was applied rather than each panel member completing an individual marking sheets and calculating their individual mark for each candidate. Concerns have been expressed in earlier equality decisions regarding the transparency of marking where this occurs, and risk of possible manipulation of the process. However, no specific concern has been raised by the Complainant regarding the interview or marking process raising an inference of discrimination. The Complainant was already teaching mathematics at the school in the previous year on a fixed-term contract, but another permanent teacher was allocated to that position. At the time of the interview, the Complainant had just completed his exams to be qualified maths teacher. His registration as a mathematics teacher with the Teaching Council did not take place until the following October 2019. In accordance with Circular 25/2013 and S30 of the Teaching Council Act 2001, the Respondent is required to employ a fully qualified teacher registered with the Teaching Council. The Respondent gave evidence that the candidates who achieved higher marks in the interview received higher marking on the basis of their interview, were qualified maths teachers and had greater experience than the Complainant. The Labour Court in Melbury Developments v Valpeters EDA0917 found in order to substantiate a claim of discrimination “…This requires the Complaint must first establish facts from which discrimination may be inferred. What are those facts will vary from case to case and there is no closed category of facts which can be relied on. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn….”. I find no prima facie case of discrimination has been made out by the Complainant. |
Decision:
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.
The complaint of discrimination is not upheld. |
Dated: 31/03/2021
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Key Words:
Prima facie case, systemic discrimination, lack of evidence |