Complainant

Respondent

Parties

Emily Williams

Board Of Management, St Tola’s NS

Representatives

Brian McGrath and Kevin Fitzpatrick,

INTO

MP Guinness, BL, instructed by

L Maule, Mason Hayes and Curran

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-00067605-001

22/11/2024

The Complainant was employed by the Respondent as a Teacher from September 2022 to August 2024 on fixed term contracts.  She alleged that she was discriminated against by the Respondent on the ground of family status and that the most recent date of discrimination was 18 June 2024. 

The Respondent is a Primary School, and the Respondent denied the allegation.

In her complaint form, the Complainant stated that on 18 June 2024 she was interviewed at the Parochial House of Devlin for a fixed term teaching position in the school.  She stated that at the conclusion of the interview the Principal congratulated her on the birth of her daughter, stating “you really should enjoy every moment at home with the baby”.  She stated that she felt it was unprofessional to discuss her maternity leave in front of the interview panel and that the comment seemed to be a hint at her not receiving the position.  She stated that the following day, she was informed via email that her application was unsuccessful. 

The Complainant stated that she consequently contacted the INTO regarding her experience and that following this she immediately requested her interview scores via the school email account.  She stated that several weeks went by without a response and that she discovered that her school account had been deactivated without prior notice, preventing access to her teaching resources accumulated over the previous two years on the schools google drive. 

She stated that on 2 August 2024 she again requested her interview scores and for resource access from her personal email.  She stated that having still received no reply by 27 August the INTO suggested she contact the Principal via text about feeling uncomfortable with the contract of indefinite duration (which is referred to hereinafter) and the interview process as outlined above and to ask if she would be willing to take a phone call from the INTO.  She stated that the Principal emailed her later that day, reiterating that the contract of indefinite duration was awarded to the candidate with the highest score from the previous interview.  The Complainant stated that on 29 August the Principal emailed her the 2024 interview scores without any notes, no explanation was provided regarding the email account deactivation nor was there any response to the request for a phone call with the INTO. 

The Complainant stated that in the months preceding this interview, other incidents had occurred that suggested potential discrimination based on her maternity leave status as follows:

·       Having worked at the school for two years on a fixed term contract, another teacher and the Complainant were eligible for a contract of indefinite duration (CID) for the 2024/2025 school year.  The Principal awarded this contract to the other teacher without informing her and providing any transparency regarding the decision making process.  She stated that she became aware of the CID’s availability and awarding only through a colleague.  She stated that after discovering this, she contacted the INTO for clarity on the process and upon learning from a colleague about the CID being awarded in May 2024, she enquired via her school email account whether the CID was awarded based on the previous years’ interview scores and requested a copy of her own scores.  Having received no reply in almost two weeks, she then texted the Principal again on 12 June asking to follow up on her previous email.  She stated that she received an email response later that day confirming that the CID had been awarded on the basis of the highest score from the previous interviews and she received her interview scores from the relevant 2023 interview.

·       After speaking to the INTO the Complainant learned that there was no requirement for an interview in year 3, even where there was a non-viable contract available.  It became clear that a Board could roll over a teacher’s contract in year 3 to retain their accumulated and continuous years of employment with the same employer for the purposes of eligibility to CID in the future.  However, by deciding to hold the above interview on 18 June 2024 for this position, the Complainant was of the view that it was the intention of the Board of Management/Principal to replace her as she was on maternity leave, despite her service to the school, in the off chance that she might wish to extend her maternity leave if offered the position. 

The Complainant stated that since being in contact with the INTO in May 2024 and again after her interview in June, she had been trying to seek clarity and details of her own interview information from the Principal, going back and forth with delayed responses and little desire to communicate via phone call with the INTO on her behalf.  She stated that these circumstances collectively suggested a pattern of potential discrimination related to her maternity leave status.  The Complainant stated that dealing with this long and ongoing process while having a new-born had been incredibly stressful and had now resulted in this complaint.

In conclusion, she stated that she believed that she was treated less favourably than others because of her family status, that she was overlooked and discriminated against for future teaching roles in the school as she was on maternity leave and not present in the school.  She noted that she was not notified about any potential CID contract or notified after it was awarded to another person.  She stated that she felt that she was unfavourably treated, as the Board of Management decided to hold an interview when it could have been a roll over contract and then also may have unfairly scored her at interview as she might wish to extend her maternity leave, having been only three months post-partum on the day of the interview.  She submitted that she also believed that the lack of communication and clarity over all of the above at the time and since, had been in avoidance of dealing with her and overlooking her as she was on maternity leave. 

At hearing the Complainant’s representative confirmed that the Complainant was taking a case of discrimination on the grounds of family status.  She confirmed that the Complainant had commenced working in the Primary School in September 2022 and that her employment had terminated in August 2024. 

The Complainant Submission

Background

The Complainant submitted that she was employed in the Respondent school from September 2022 to August 2024 and that in June 2022, she successfully applied for and attended an interview for one of two fixed-term positions in St. Tolas National School. As a result, she was offered the position of Special Education Teacher (SET) for the 2022/23 school year. In June 2023, interviews were held for two fixed-term positions. The Complainant once again was successful and accepted a role within the school for 2023/24 school year where she was offered a position as a teacher in 1st Class.  The Complainant took statutory annual leave from 6 February 2024 which took her up to the beginning of her maternity leave which began on 26 February 2024. A teacher was employed on a fixed-term basis to cover her maternity leave. The Complainant gave birth to her daughter on 26 March 2024 and on 29 March 2024, she sent a WhatsApp message to the Principal informing her of the birth of her daughter. The Principal responded expressing her congratulations and hoping she was keeping well. The Principal also asked could she share the news with the staff group, to which the Complainant gave a positive affirmation. 14.

On 11 April 2024, the Complainant enquired from the Principal via WhatsApp as to the likelihood of teaching posts being available in the 2024/25 school year. The Principal responded stating there would be one fixed-term post available in September but that it could not be advertised until the panels had been published and cleared.  On 28 May 2024, a fixed-term teaching post was advertised online. This post occurred as a result of an application by a staff member seeking an interschool job-share arrangement for the 2024/25 school year. This created a fixed-term post in the school for that academic year.  Around the time of the application process (May 2024) for the fixed-term post, the Complainant communicated with her colleague as to whether she would also be applying for the fixed-term post for 2024/25.  In the course of this communication, the Complainant’s colleague revealed that a Contract of Indefinite Duration (CID) was allocated to her earlier in the year. The Complainant submitted that her colleague began work on the same day she started in the school in September 2022 and that at no time did the Respondent communicate with the Complainant that a process was in place to award a CID to a teacher in the school. The Respondent was not transparent or open about how the CID was to be awarded and to whom. The process was progressed and completed without the knowledge of the Complainant or any other teacher in the school apart from the teacher who was awarded the CID.

The Complainant sent an email to the Principal on 31 May 2024 seeking clarity regarding the awarding of the CID, as she had also built-up entitlement to CID eligibility at the end of the 2023/24 school year. In this email she requested notes and scores from her previous interview held in June 2023.  The Principal responded to the email on 12 June 2024 indicating that the CID had been awarded to a colleague based on the scores from the June 2023 interview. She also stated that there were no further viable contracts available in the school and therefore the fixed-term post which was advertised could not be awarded for CID. The Complainant subsequently was told by a teacher colleague that a member of teaching staff was applying for a career break in February 2024. The vacant post could then be filled through a CID application to the Department of Education as detailed in Circular 23/2015. 22. The CID was granted to the colleague who began work on the same day as the Complainant. The Complainant submitted that a period of some 3 months passed before she would learn of this information. The Complainant submitted that this was an act of discrimination.

As there was no communication or transparency in the process by the Respondent school as to how a CID was awarded until June 2024, and upon further learning that no posts would be eligible for CID in 2024/25, the Complainant was left with few options. She applied for the fixed-term post and submitted an application on 31 May 2024 and she was invited to attend an interview on 18 June 2024 (at the Parochial House in Delvin. The interview panel was made up of Fr Heaney (Chairperson), Mrs Eileen Smyth (Principal) and Ms Anne Fitzpatrick (Independent Assessor). The interview progressed with a number of questions asked. The Chair offered the Complainant to make any further comment or ask a question after the panel completed their questions.  As the interview was ending the Principal Mrs Smyth congratulated the Complainant on the birth of her baby. She went on to say, ‘You really should enjoy every moment at home with the baby’.

The Complainant submitted that a selection panel being informed that the Complainant was on maternity leave during the course of interview and being told that she should be at home with the baby was discriminatory. The Complainant submitted that this discrimination came about as a result of information bias and submitted that information bias refers to the tendency to gather or interpret information selectively and that the distribution or demonstration of that information can cause someone’s perception to be distorted or changed. The Complainant submitted that conducting an interview for a role within the school was not an only an inappropriate time to discuss her newborn but it further highlighted that she was off work on maternity leave.

The Complainant received an email on 19 June 2024 stating that her application was not successful, and she was not awarded the fixed-term position. The Complainant submitted that her employment at the school ended as a result of the Respondent’s failure to award her with a contract which would have led to her continued employment with the school which likely would have led her being awarded a CID once / if a viable position became available, but in any event would continue her employment whether CID entitlement arose or not.  On 19 June 2024, the Complainant emailed the Principal requesting scores and feedback from the interview. A further email was sent on 2 August 2024 as no response was received from her email sent 19 June 2024.  The Complainant’s school email account had been deactivated without prior notice around the end of June 2024 / beginning of July 2024 which prevented her from accessing school notes and materials which she had compiled over a two-year period while employed in the Respondent’s school.  As the Complainant was technically in contract until 31 August 2024, a move by the Respondent school to deactivate her account should not have taken place until her contract expired. The Complainant submits this is an act of discrimination.

Upon advice from her union, the Complainant sent a further message to the Principal requesting scores and notes from the interview. The Principal responded 7 on 27 August 2024; her first day back at work after the summer break. The INTO contacted the Principal to ascertain a number of points in relation to the awarding of a CID and as to the process of selecting a candidate for a non-viable fixed term contract in the school for the 2024/25 school year. 38. The school Principal confirmed that two teachers would be eligible for CID, one of whom was the Complainant, but that the school only had one viable post available. The process of selecting the teacher for CID was based on the highest score in interview in June 2023 according to the Principal. The Principal confirmed that the school sought advice from the patron body and made a considered decision as a Board of Management to proceed with a recruitment process to fill the fixed-term contract for the 2024/25 school year.  The INTO stated that in such circumstances where a teacher is eligible for CID and where a viable contract is not available, any available contract should be awarded to the teacher who has not gained a CID. The Principal made the point that the Board of Management had given much consideration to the situation and as they had open competition for posts in the past, they would continue this practice.  The INTO contacted the school Principal again on 27 September 2024 to seek clarity regarding other applicants from within the school who had applied for the fixed-term position. The Principal stated that three other teachers expressed interest in the post. One teacher in the school had been in the school for a number of years and had ‘rolled from one contract to the next.’  It was also stated by the Principal that as more than one member of staff had expressed interest in applying, all should have the opportunity to apply for the post in open competition in the interests of fairness to all members of staff.  The post was offered to a teacher who was covering the Complainant’s maternity leave.

The Complainant submitted that the 2-year period she worked with the Respondent was characterised by positive and constructive relationships between the Complainant and the various stakeholders of the school, such as staff, pupils, and parents of pupils, and she enjoyed an unblemished disciplinary record.

The Complainant submitted that she was subjected to discriminatory treatment contrary to section 6 of the EEA which states: “…discrimination shall be taken to occur where – (a) a person is treated less favourably that 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”) which – (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned”. She noted that Section 6(2) of the Act states: “As between any two persons, the discriminatory grounds, (and the descriptions of those grounds for the purposes of this Act) are – c) that one has family status and the other does not (in this Act referred to as “the family status ground”)”

 She further noted the Labour Court decision in O’Higgins v UCD ([2013] ELR 146), which was upheld on appeal by the High Court, which helpfully summarised the applicable principles in claims of alleged discrimination in selection processes as follows: “It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for. It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation, which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. The Court must 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”

In relation to Comparators the Complainant noted that she must prove less favourable treatment as compared with another person in a similar position to the Complainant, and who does not possess the protected characteristic the Complainant has, who was treated differently.

The Complainant named Ms AC as the first comparator and referred to her as Comparator A (throughout her submission. She was awarded CID in May 2024.  Ms AM, was named by the Complainant as the second comparator, and she referred to her as Comparator B. She secured the fixed-term post for the 2024/25 school year. 53.

The Complainant noted that Section 6 of the Employment Equality Acts requires that the Comparator must be in a ‘comparable situation’ and therefore a level of similarity is required in order for the circumstances of others to be comparable. The Complainant submitted that

the Comparators selected worked in the same setting as the Complainant (the Respondent school), they worked in the same area of work as they are all teachers, and that they are all women. She further submitted that the Complainant:

i)                    Has been a primary school teacher since 2017

ii)                   Is the most experienced person

iii)                 Has taught SET as well as a range of classes in schools

iv)                 Has children

v)                   Was on maternity leave when a CID was awarded to another teacher in the school

vi)                 Was on maternity leave at the time of interview for the fixed-term post held in June 2024 57.

The Complainant noted that Comparator A who was awarded CID:

i)                    Has less experience as a primary school teacher

ii)                   Taught fewer range of classes in the school

iii)                  Does not have children

iv)                 Was working in the school when awarded a CID

The Complainant further noted that Comparator B who was offered the fixed-term position for 2024/25:

i)                    Was a substitute teacher in the school

ii)                   Had been working ad hoc days while the Complainant was working in the school

iii)                  Does not have children

In June 2024, the Complainant was one of four candidates who were invited for interview. Two candidates did not present for interview, leaving the Complainant and another female candidate participating in the interview process. Given the absence of interview notes or any explanation for the underscoring of the Complainant in the 2024 interview and an absence of reasons as to why the Comparator scored higher, it was submitted by the Complainant the test in O’Higgins v UCD is easily met.  In addition, the Complainant submitted that she has demonstrated that there is no discernible justification – on the basis of qualifications and experience – of the appointment of the Comparator over the Complainant, save for the candidate not being pregnant / on maternity leave at the time of the interview or the date of the commencement of the contract, having a different family status to the Complainant. The Complainant was on maternity leave at the time of the interview on 18 June 2024, which was known to the Respondent and further the Principal was aware that the Complainant would continue to be on maternity leave until it ended on 25 August 2024. The Complainant submitted that it is common case that maternity leave is a category of protective leave, and that employees on protective leave should be treated in the same manner as they would be were they not on protective leave. It is submitted that the Complainant was treated less favourable by the Respondent in the June 2024 interview process, and this was related to the Complainant’s status (i.e. being on maternity leave and intending to be on maternity leave for the beginning of the following school year) and the failure by the Respondent to observe this protection was a discriminatory act.

In relation to the ground of Family Status the Complainant submitted that she is a mother of a young family, which was known to the Respondent, and that she was one of two candidates who attended for interview for the position on offer on 18 June 2024.  The Complainant drew attention to the case of A Support Pharmacist -v- A Pharmacy Chain ADJ-00022879, where the Complainant commenced employment in a part time / job sharing role with the Respondent in November 2018. Shortly thereafter, she was asked by the Respondent to change her hours to full time hours on Tuesdays and Fridays. The Complainant had accepted the part time role as she had childcare commitments and as such, it was not feasible for her to carry out full time hours. The Respondent offered the Complainant a transfer to their Dublin Airport branch with hours between 4am and 12.30am. These hours were not manageable from a childcare point of view and the Complainant declined. In April 2019, the Respondent informed the Complainant that the part time role had not worked out and it was necessary to hire a full-time pharmacist. The pharmacist who was hired to replace the Complainant was a male. The Complainant argued that no realistic effort was made to facilitate her part time hours. Clearly, she was a female and her family status position as being a mother with children was never contested. Her claim was that she had been engaged to do Part Time work and this was allegedly discriminatorily removed from her. The Complainant successfully argued that she was discriminated against on the grounds of gender and family status.

The Complainant also cited the case of An Employee v A Healthcare Company ADJ-00017070, where the Complainant resigned from position in February 2017 to take up a part-time position with another company. In July 2017, the Complainant was contacted by the Respondent and asked if she would return to employment with the Respondent. The Complainant indicated that she required a part-time role if she was to return due to family responsibilities and recommenced employment in September 2017, working 25 hours per week. The Complainant was informed in September 2018 that the part time position was “not working out” and was asked to return to her full-time hours. The Complainant felt that she was not given an option and that the position was to stay and move to full time or leave the Respondent company. After a period of leave, the Complainant was told there was no point in coming back, and as such, she could be paid one month’s pay in lieu of notice. The Complainant claimed discrimination on, inter alia, the family status ground in relation to her conditions of employment. The WRC held that the complaint was one of indirect discrimination on family status grounds and that the provision introduced by the Respondent which would have required the Complainant to work full time, amounts, prima facie, to indirect discrimination on grounds of her family status.

In conclusion the Complainant submitted that she has acted reasonably and professionally at all times. The Complainant enjoyed a positive working relationship with the Principal and staff while working at the Respondent school from September 2022 to August 2024. The Complainant submitted that she enjoyed working in the school and hence wished to continue her employment in the Respondent school.  Whilst not being awarded a Contract of Indefinite Duration (CID) in the school due to lack of available viable contract, the Complainant applied for a fixed-term post for the 2024/25 school year as she wished to continue her employment in the school.  For reasons outlined above, the Complainant submitted that she was discriminated against by the Respondent on the grounds of family status and that but for the fact she was on maternity leave and would have been from the beginning of the following school year (2024/25), she would have gained further employment in the Respondent school therefore maintaining her continuous employment for the purpose of CID

Witness evidence – The Complainant:

The Complainant confirmed that she had commenced teaching with St Tolas National School in September 2022 and that she went on maternity leave in March 2024 and at the time she was teaching Junior Infants.  She stated that at the end of her second year of employment, there were two fixed term posts advertised for the year 2023/2024 and that she was successful in obtaining one of those positions.  She stated that, as a teacher, if you had built up enough years, you would then be entitled to a Contract of Indefinite Duration (CID) after two years of fixed term contracts.  She confirmed that one other colleague had started at the same time as her.  She stated that the colleague who started at the same time as her, was given the CID after two years and that she only found out afterwards through hearing from her colleague.  She stated that when she was applying for the fixed term contract for the year 2023/2024, she had texted the colleague to let them know that the fixed term posts were advertised, and the colleague had responded that she had been sorted with a CID.

She stated that her only option was to stay in school during her maternity leave until she applied for the fixed term contract.  She stated that she was invited to interview on 18 June 2024. She stated that each of the members of the interview board asked a range of questions, for example around the Catholic ethos, or how to deal with difficult parents etc.  She stated that the comment was made by the Principal towards the end of the interview in relation to her baby, that Ms Smyth had asked about her baby and had advised that she should enjoy every minute at home with the baby.  She stated that she was caught completely off guard when this was brought up and that she didn’t think it should have been brought up in front of the other members of the interview board, and that to her, it felt like Ms Smyth was reminding the others that the Complainant was on maternity leave.  She felt that there had been no need to offer congratulations as she had texted her earlier offering her congratulations.  She stated that the interview was not over at the time and that while it was towards the end of the interview, Fr Heaney had asked if there were any further questions after that discussion had taken place.

She stated that the fact that she did not receive the CID had a significant impact on her as it created a break in service, and she needed to start all over again to accrue entitlement to a CID and she also confirmed that this impacted her entitlement to parent leave.  The Complainant stated that she believed she was unsuccessful due to the comment being made by the Principal, Ms Smyth.

Cross Examination of the Complainant:

Under cross examination the Complainant was asked if she would confirm that she was applying for one of two fulltime fixed term contracts in 2024 and that there were three applicants and that she came second.  The Complainant stated that she was unaware of the number of candidates in the competition.  However she did confirm that she was aware that she came second, not at the time, that while she knew the scores, she didn’t initially know the ranking.  She confirmed that in relation to the issue of who received the first CID, it was only upon the intervention of the INMO that she became aware of the ranking. 

The Respondent Representative drew attention to the Department of Education guidelines in relation to the issuing of a Contract of Indefinite Duration and pointed the Complainant to the fact that the Complainant came third at the first interview and that she came first at the second interview.  In relation to the fixed term contract there were two female and one male applicant.  The questions from the panel had ended and the Principal then offered her congratulations in relation to the baby.  The Complainant responded that that was not correct, while she accepted there were no further questions put by any members after the comment, she stated that the interview was not over as Fr Heaney, Chairperson of the interview board, had not concluded” winding up the interview.” 

The Respondent Representative asked the Complainant how she related the comment of the Principal to her not getting the job and the Complainant responded that she felt it was that she should have been at home and not applying for the job and that it also made all of the interview members aware of fact that she was on maternity leave.  The Complainant stated that it certainly left the potential open for that.  The Respondent Representative put it to the Complainant that the fact that she had just had a baby and that this was the first occasion the Principal met her since, was it not appropriate for her to congratulate her and wish her well and that this was not a matter of discrimination.  The Complainant responded that it would have been if it had been a private conversation, it would have been more credible and it would have had no impact. 

Concluding Remarks

The Complainant Representative stated that the handling of the CID had been intrinsically unfair, that there was no local policy in place and that there was no communication with the Complainant in relation to the award.

In relation to the interview process he drew attention to the fact that the independent assessor had no knowledge of the Complainant’s family status but that she was alerted to it by the comments made by the Principal.  He noted that no other candidate was asked about their family status.

The Complainant Representative stated that but for the fact that the Complainant was on maternity leave she would have been offered the job and by the end of that fixed term contract she would have been eligible for a CID.

Response to Respondent concluding remarks

In response to the Respondent concluding remarks, with reference to the question of the CID being out of time the Complainant Representative stated that the unfairness that began with the CID continued with the events surrounding the interview for the fixed term position.

Noting the Respondent response to the above the Complainant Representative stated that he had made reference to discrimination in his closing points.

The Respondent noted that by the complaint form received on 22 November 2024, the Complainant had lodged a complaint under Section 77 of Employment Equality Act, 1998, alleging that she had been discriminated against by reason of her family status and that she further alleged that the Respondent had treated her unlawfully by discriminating against her in relation to a job and that the most recent date of discrimination was 18 June 2024.

The Respondent submitted the following:

·       That there were two applicants for one role in the school for the year 2024/2025

·       That the interview panel at the school was a panel of three, with two females and one male

·       That both teachers interviewed would have been entitled to a Contract of Indefinite Duration (CID) if they were to be employed for a further year

·       That the school decided, as it always did, that the fair way to handle the matter was to interview the two teachers and the teacher with the highest score would be entitled to the decision

·       While the circular 0023/2015 and circular 0044/2019 provides that an interview is not mandatory, it does allow for an interview to be held, and it was the view of the Respondent that this was the fairest way to handle the CID situation.  This is the way that the school has always handled the issue in the past and deemed the fairest way to award a contract.  The Respondent appended the relevant circulars to their submission

The Respondent set out the following chronology of events:

·       In June 2022 interviews were held for two fixed term positions.  The Complainant placed second in the 2022 interviews and Comparator A was placed third.  Both the Complainant and Comparator A were offered and accepted roles within the school, as the person placed first declined the role.  The Complainant worked in SEN and Comparator A worked in the mainstream school

·       In June 2023, interviews were held again for two fixed term positions and in this instance Comparator A was ranked first following interview and the Complainant was ranked second and both were offered and accepted roles

·       On 1 February 2024, an application was made by another teacher for an inter school job share arrangement to continue.  The Board of Management meeting sanctioned this to continue which would result in a fixed term position for the year 2024/2025

·       On 26 February 2024, the Complainant commenced her maternity leave.  Comparator B, who had been employed as a substitute teacher since January, was appointed the maternity cover for the Complainant.  She commenced in 1st Class on 1 February 2024 as the Complainant was on leave at the time

·       In mid-February 2024, another teacher, informed the Respondent that she wished to resign her position in the school.  She was a permanent member of staff and held a post of responsibility.  This resignation provided an opportunity for a CID application for the school for the year 2024/2025.  The school decided that a CID application would be made for Comparator A, as she was the candidate that scored the highest on the previous interview.  Comparator A was informed of this application in late February.  An application to award Comparator A a CID in 2024/2025 was made to primary allocations on 28 February 2024.  The CID was awarded to Comparator A in May.  The CID contract was awarded to the candidate with the highest score in the previous interview.  The Complainant was not awarded the CID and therefore there was no requirement to inform her.  There are no mandatory DES guidelines suggesting otherwise

·       On 11 April 2024, Ms Smyth (Principal) received a text from the Complainant querying whether there would be a job in September within the school.  On 28 May 2024, a fixed term advertisement was published on educationposts.ie

·       On 31 May 2024, an email was received from the Complainant requesting clarity in relation to the CID and interview notes.  In the email, the Complainant stated that she had found out there was a CID signed contract for the following year and asked whether this was awarded by the highest score on the interviews from the previous year, as she had also had in excess of two years in the school.  She asked to see her interview scores and notes to see the areas she could improve on. 

·       Via email dated 12 June 2024, the Principal responded, apologising for the delay in getting back to the Complainant in relation to the query, and she confirmed;

·       A permanent teacher had resigned their position which made way for a CID application to be made.  This was awarded to the person with the highest score from the interviews last year

·       The current fixed term that is advertised does not meet the criteria for CID, therefore she could not award it to anyone, and

·       She would attach the scores in relation to the interview the previous year

·       The Complainant applied for the fixed term position and interviews were held on 18 June 2024.  The interview panel consisted of Fr Seamus Heaney (Chairperson), Ms E Smyth (Principal), Ms Ann Fitzpatrick (Independent Assessor).  There were two people interviewed for the role as two other applicants were unable to attend.  In the interview, the Complainant received an overall total of 254 point, compared to the successful candidate, Comparator B, receiving 274 points. 

·       The breakdown of marks awarded to AM were as follows;

a.       Ms Smyth awarded AM 93 marks

b.       Fr Heaney awarded AM 93 marks

c.       Ms Fitzpatrick awarded AM 88 marks

Compared to this the Complainant was awarded:

a.       82 marks by Ms Smyth

b.       88 marks by Fr Heaney

c.       84 marks by Ms Fitzpatrick

·       After the interview had concluded and Fr Heaney informed the Complainant that it was over, the Complainant was then given the opportunity to ask questions.  Following this, the conversation shifted to congratulating the Complainant on the birth of her baby.  The Complainant had been a colleague in the Respondent school for two years and this was the first meeting with her since the birth of her child.  As a mother of three herself, the Principal commented that she should enjoy spending time with her baby.  This was intended to be warm and considerate, given it was the first time the Principal had met the Complainant since she had given birth.  There was no intention to influence the Board’s decision as both Fr Heaney, (the Chairperson), and Ms Fitzpatrick, were aware that the Complainant was on maternity leave and this comment had no bearing on the scoring of her performance. 

The Respondent submitted that regarding non-viable contracts, the Board may choose to extend a contract in the third year to maintain continuous employment, but this is an option, not a requirement.  The Respondent school has never used this option.  The policy has always been to appoint fixed term contracts through an interview process.  The Respondent does not roll over contracts.  The Respondent submitted that the Board of Management conducted a fair and transparent process when offering a fixed term contract.  The position was advertised, and the Complainant was invited to interview.  The Complainant’s maternity leave ended on 25 August 2024.

·       The Respondent submitted that on 28 August 2024, the Principal received a request from the Complainant for her or the Chairperson to take a phone call from the INTO representative.  On 12 September 2024, the Principal received a phone call from the INTO and the Principal answered the relevant questions.  The INTO representative acknowledged the fact that the school had just returned after the holidays as it would be a very busy time in the year for a school and particularly a Principal.  He confirmed that he was working on behalf of the Complainant and asked the following questions:

1.       Was there more than one person with potential CID entitlement in the school

2.       Why did the school not award the fixed term contract year 3 to the Complainant, and

3.       Was the interview an open competition

·       The Principals response to the above were as follows:

1.       There were at least two potential candidates for the CID application, one of them being the Complainant.  The school decided that the CID contract would be awarded to the candidate that scored the highest on the previous years interview

2.       Since her appointment as Principal, and from memory as the Deputy of the School, the school never rolled teachers into a fixed term contract.  The school always held interviews to determine the most suitable candidate. 

3.       The interview for the fixed term position went to open competition

·       The Respondent noted that the INTO representative thanked the Principal and raised no issues of discrimination or otherwise in relation to the interview process that had taken place

·       The Respondent further submitted that on 27 September 2024, the Principal received an email from the INTO requesting a follow up call.  In that call the representative sought clarity on two things:

(i)      the CID status of the candidates and

(ii)    interviews for the fixed term contracts.  The Principal’s responses were as follows:

·       She reiterated the same response she had already given; that two candidates were eligible for CID, with the school deciding to award the CID to the candidate that scored the highest in the previous interview

·       In relation to query 2, the INTO representative informed her that the Complainant had informed him that the candidate that was awarded the fixed term position had “subbed ad-hoc at the school and then covered her maternity leave”.  The Principal informed the INTO that the fixed term position was advertised and subsequent interviews took place as the Board of Management adopted a transparent and fair process.  At that time, two more staff were working in the school and the school had always adopted the approach that current staff would be entitled to get an interview if a potential job became available.  Therefore, in the interests of fairness to everyone, the school decided to advertise the position and subsequently interview.  The awarding of the position to another candidate purely went on interview performance at the time.  The Principal reiterated again that the school never rolls people into fixed term contracts.  The INTO representative thanked the Principal and the phone call ended.  Again, there was no mention at any point about “the comment” which the Principal made to the Complainant at the end of the interview

The Respondent drew attention to Section 6 (1) of the Equality Act which provides that: “Discrimination shall be taken to occur 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 grounds specified in subsection (2) (in this act referred to as the “discriminatory grounds”. 

The Respondent also noted section 6 (2) of the act which provides that: as between any 2 persons, the discriminatory grounds include; “that one has a family status and the other does not (in this Act referred to as “the family status ground”)”. 

The Respondent submitted that the burden of proof requires the Complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibitive conduct has occurred.  Therefore, the Complainant must first establish a prima facie case of discriminatory treatment, and it is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebuff the presumption of discrimination.  The Respondent submitted that in order to establish a prima facie case, the Complainant must satisfy the three stage test:

         i.            That the Complainant comes within a protected category pursuant to the act

       ii.            That there was specific treatment of the Complainant by the Respondent

     iii.            That the treatment of the Complainant was less favourable than the treatment that was or would have been afforded to another person in similar circumstances.

The Respondent opened the case of Southern Health Board versus Mitchell [2001] ELR 201, where the Labour Court could consider the requirement of a case of prima facie evidence as follows:

“The first requirement …… is that the claimant must establish facts, from which it may be presumed that the 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 these primary facts are established to the satisfaction of the 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 was no infringement of the principle of equal treatment”. 

The Respondent submitted that the mere fact that the Complainant had a baby, does not in any way discharge the prima facie burden that rests upon her in bringing this case.  The Respondent opened the case of Graham Anthony & Company Limited versus Margetts (EDA 038) where the Labour Court further commented on the potential burden which must be discharged by a Complainant before a prima facie case of discrimination can be said to have been established and stated, as follows:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

The Respondent also opened the case of Arturs Valpeters  versus Melbury Development Limited (EDA 0917), where the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:

“The Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  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.  Section 85A [of the Employment Equality Act, 1998 – the equivalent of Section 35A of the Equal Status Act 2000, which applies in the instant case], places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits no exceptions to that evidential rule. 

In this case, it was submitted that the Complainant was treated badly by the Respondent and the court was invited to infer that he was so treated because of his race.  Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were, or would be treated more favourably.  All that has been proffered in support of that contention, is a mere assumption unsupported by any evidence”. 

The Respondent submitted that the Principal congratulated the Complainant on the birth of her daughter and stated that she should enjoy every moment at home with the baby.  The Respondent strenuously denied that this was anything other than the normal exchange between a principal and a teacher on meeting for the first time after the teacher having a baby.  The Respondent submitted that the suggestion that this amounted to an attempt to influence the marking, or that it did in fact influence the marking, was simply speculation, not grounded in facts or evidence.  The Respondent submitted that it was clear from the marking of the two candidates, that the successful candidate marked higher across the board and scored significantly higher marks overall. 

The Respondent strenuously denied that there was a pattern of potential discrimination in relation to the Complainant’s maternity leave status and noted that the Respondent had a predominantly female staff and that it facilitates and encourages all their staff to combine motherhood with their work. 

In conclusion, the Respondent submitted that the Complainant was not successful as she had scored lower than the successful candidate and that it strenuously denied that the scores were linked in any way to her family status.  The Respondent appended the relevant circulars, the interview marking sheets and all other documentation referred to in their submission together with the Contract of Employment to its submission.

Witness evidence – Ms Smith (Principal):

At hearing Ms. Smith confirmed that she was the Principal of the school for approximately 4 years but that she had been employed in the school since 2004. 

She stated that it was the policy of the school, when awarding CID’s that the highest scores are taken into account from interviews held the previous year.  She confirmed that in the competition in 2022 the Complainant had been ranked second in the competition and that there had been three applicants.  She confirmed also that in the 2023 competition the Complainant had again ranked second.

Ms. Smith stated that in 2024 a viable CID arose while the Complainant was on maternity leave and that it was applied to the person with the highest score from the interviews in 2023.

Ms. Smith confirmed that in the interview process for the fixed term contract in 2024 all members of the interview board awarded higher scores to the other candidate.  She stated that she made the comment at the end of the interview, after everyone had finished questioning the Complainant.  She stated that as a mother of 3 children herself, she understood how busy it can be and that this was the first time had met the Complainant after the birth of her baby.  She stated that it was an empathetic comment.  In response to a question put by Ms. Guinness, Ms. Smith stated that the comment was in no way intended to “sway” the other members of the interview board.  She confirmed that each member of the interview board scored candidates independently and that those scores were combined at the end to give a total score for each candidate. 

In relation to the allegation of discrimination, Ms. Smith stated that she had been contacted twice by the INTO and that there had been no mention of discrimination, that the first mention was in the complaint to the WRC.

In relation to the fixed term contract, Ms. Smith stated that the schools’ policy had always been to interview.  She stated that the school was supportive of female teachers and that it employed a lot of female teachers.  She stated that they would like to have more male teachers but that the school had only 1 male in employment.

Cross examination – Ms. Smith (Principal)

Under cross examination Ms. Smith confirmed that she was aware that the Complainant was building up eligibility towards a CID.  She accepted that Circular 23/2015 referred to probity, openness and transparency and fairness in the designation of CID’s.  She confirmed also that it was her view that the Board of Management had demonstrated same when they awarded the CID to the teacher who had gained the highest score in the previous competition.

In response to questions from the Complainant Representative Ms. Smith accepted that the Complainant was not aware that a CID had been offered to her colleague.  She stated that it was “nothing to do with her” as “she wasn’t the one with the highest score”.  She stated that the matter was a concern only for the individual teacher and the Board of Management.  Furthermore, she accepted that the Complainant only became aware of the award of the CID from a colleague.

The Complainant Representative put it to Ms. Smith that the Complainant did not feel that this had been an open and transparent process, to which Ms. Smith responded, “that’s up to her”.  The Complainant Representative asked how it could be deemed to be open and transparent when there were clearly two people building up entitlement and one was not given consideration or advised of the decision.  Ms. Smith responded that the Complainant had been part of the process when she competed for the position the previous year.

The Complainant Representative asked Ms. Smith if the independent member of the interview board for the fixed term position was aware in advance of the interview that the Complainant was on maternity leave.  Ms. Smith confirmed that the independent assessor was aware that the Complainant was an employee of the school but that she didn’t know about the maternity leave.  She clarified that she and Fr. Heaney were aware from their role on the Board of Management.

The Complainant Representative put it to Ms. Smith that the Complainant’s maternity leave was discussed at the end of the interview.  Ms. Smith stated that she had made a congratulatory comment at the end of the interview, as one mother to another and that this was how the independent assessor became aware of the Complainant’s maternity leave.    The Respondent Representative put it to Ms. Smith that she had breached the Complainant’s confidentiality, that the Complainant had not given her permission to share that information and that she had pre-emptively told the independent assessor that the Complainant was not suitable for the job.  Ms. Smith stated that this was not the case.  The Respondent Representative asked Ms. Smith if she had made the same comment to others attending for interview, to which Ms. Smith replied, “obviously not”.

He Respondent Representative put it to Ms. Smith that in making the comment she had “reinforced” Fr Heaney’s awareness that the Complainant was on maternity leave and asked her if she would feel comfortable being asked that question in a similar situation.  Ms. Smith replied that it wasn’t in the course of the interview as the interview process had concluded.

Witness evidence – Fr Heaney:

Fr. Heany confirmed that he was the Chairperson of the Board of Management and that he had chaired the interview board.  He confirmed that he was a party to the decision to award the CID to the person scoring highest in the previous competition.  He confirmed that he did not recall there being any mention about the Complainant being on maternity leave.  In relation to the interview for the fixed term contract he stated that he was confident that the comment made by Ms. Smith did not impact his decision making and he stated he was already aware of the Complainant’s maternity leave.  He stated that his decision was based solely on the performance of the candidates at interview.

Cross examination – Fr Heaney

The Complainant Representative asked Fr. Heaney if he accepted that it was inappropriate to have discussed the Complainant’s maternity leave at interview.  Fr. Heaney stated that the comment was made after the interview had finished, that he didn’t think there was anything inappropriate and that he took it as simply a friendly comment.

The Complainant Representative put it Fr. Heaney that any comment or question at interview would be taken as part of the interview and recorded in the notes.  Fr. Heaney responded that he understood that the interview has ended when the questions are finished, and he stated that in that context he wouldn’t have written it down.

The Complainant Representative asked Fr. Heaney if he would accept that the comment was made in order to highlight that the Complainant was on maternity leave, to which Fr. Heaney responded “No” and that he didn’t think at the time that the comment was made in order to influence the panel.

The Complainant Representative put it to Fr. Heaney that the Complainant’s maternity leave should have been treated as a private matter and asked Fr. Heaney if he accepted that.  Fr. Heaney responded that he didn’t know the answer to that, and that his opinion was not relevant.

The Complainant Representative asked if any questions regarding family status had been put to other candidates and Fr. Heaney confirmed that they had not but he stated that he did not agree that the Complainant’s family status was discussed.

Questioning of Fr. Heaney by the Adjudication Officer

The Adjudication Officer asked Fr. Heaney if the policy in relation to awarding CIDs was ratified by the Board of Management and he confirmed that it was.  He was then asked when it was ratified.  Fr Heaney asked for the questions to be repeated and he then confirmed that it wasn’t a written policy and he confirmed that it was agreed at the time of awarding the CID.  He stated that there was no Department of Education policy requiring the school to consult in relation to awarding a CID. 

The Adjudication Officer asked Fr. Heaney when he had first learned of the Complainant’s maternity leave, to which he replied “I can’t be sure”.

Fr. Heaney was asked about how the interview board carried out the scoring/assessment of candidates.  He confirmed that the board had a general conversation about the strengths and weaknesses of the candidates and then did their individual scoring.  He couldn’t recall why he had amended his score under one category, but he stated that he would generally review scores and if he felt that it didn’t merit the full score he would amend accordingly.  He confirmed that there was no group discussion prior to making that change.

Concluding Remarks

The Respondent Representative noted that the complaint form was lodged with the WRC on 22 November 2024 and that therefore the cognisable period for the complaint was from 23 May 2024 to 22 November 2024.  In that context, she stated that the issue of the awarding the CID was out of time.  She further noted that no application was made for an extension of the time limit.

The Respondent Representative stated that the Complainant Representative had not demonstrated that any unfairness in that process was related to pregnancy and that he had accepted that it was valid to award the CID based on the highest scoring candidate in the previous interview.

In view of the above complaint being outside the cognisable period and in view of the validity of the option chosen by the Respondent, the Representative stated that the only issue to be determined was the issue of the interview for the fixed term contract.  She stated that

·       it was quite clear that the Complainant had attended 3 different interviews and had been positioned second each time

·       there was no evidence to support an allegation of bias in the interview process, other than the reference to the comment made by the Principal

·       it was clear that all three members of the interview board had marked the Complainant lower and

·       there was nothing to suggest that the comment had any impact on the outcome

In response to the Complainant Representative comments regarding the CID matter, the Respondent Representative noted that the Complainant was relying on the “unfairness” of the awarding of the CID and that unfairness was not the same as discrimination.

I have considered carefully all submissions verbal and written, all supporting documentation and evidence given by witnesses at hearing.

I understand the Complainants complaint to be that she was discriminated against by the Respondent in relation to a series of appointments as follows:

·       the awarding of a CID to her colleague

·       in relation to her treatment at interview for a fixed term contract and

·       in relation to her not being appointed to that fixed term position

I understand that she has taken her complaint on the grounds of family status, and in the context that she was on maternity leave when the issues described arose.

 Preliminary Matters

There are 2 preliminary questions to be considered:

1.       Is the issue of the awarding of the CID within time?

2.       Has the Complainant discharged the Burden of Proof obligation under the Act?

1.       Is the issue of the awarding of the CID within time?

In relation to time limits the EEA states that a claim in respect of discrimination “may not be referred under this section after the end of a period of 6 months from the date of occurrence of the discrimination… to which the case relates or, as the case may be, the date of its most recent occurrence”.

The Complainant lodged her complaint on 22 November 2024, therefore the cognisable period for the complaint is from23 May 2024 to 22 November 2024.  The “most recent occurrence” of discrimination complained of by the Complainant is alleged to have occurred on 18 June 2024 and from her submission it is clear that she complains of a continuum of discrimination that began with the awarding of the CID and culminated in her not being appointed to the fixed term position for which she interviewed.  In these circumstances I find that all the issues raised within her complaint are within time.

Preliminary Issue – Initial Burden of Proof Under the Employment Equality Act:

The Complainant submitted that she was discriminated against on the basis of family status and that this related to issues regarding her treatment by the Respondent in relation to the awarding of a CID and an appointment to a fixed-term contract and to comments made by the Principal at interview.

It is settled law that the onus is on the Claimant to initially establish an arguable case of discrimination before the Respondent is required to disprove that discrimination has taken place.  To this end it is for the Complainant to identify and establish facts of sufficient significance to raise a presumption of discrimination to discharge the initial burden of proof under section 85 A of the Employment Equality Act. 

I noted the Respondent position that the Complainant had not set out such facts.

In that regard I noted that the Complainant relied upon the following facts to ground her complaint of discrimination of the basis of family status:

·       That she had been eligible to be considered for a CID in 2024 while on maternity leave and had not been considered for the position

·       That the post had instead been given to a colleague who also had entitlement but who was not on maternity leave at the time

·       That the teacher appointed (Comparator A) was not as experienced as her and appeared to have been appointed because she had scored higher in a previous interview process for a fixed-term contract

·       That she was never informed of the availability of the CID nor of her order of merit on that panel and that no information regarding the scoring of that interview was ever forthcoming from the Respondent

·       That she had competed, while on maternity leave for a further fixed-term contract and had been unsuccessful and that a teacher who had only provided ad hoc cover with the Respondent school had been appointed instead (Comparator B)

·       That in not being appointed she had lost out on parent leave and the opportunity to acquire a CID

·       That at the interview for the post the Principal had told her to enjoy her time with her new baby, thus alerting the other members of the interview board to the fact of her maternity leave and in so doing treating her differently to all other candidates.

Having considered these facts I am of the view that the Complainant has set out sufficient facts to raise an inference of discrimination on the grounds of family status.  In light of the foregoing, I am satisfied that the Complainant has discharged the evidential burden required to establish a prima facie case and it falls to the Respondent to rebut the inference of discrimination raised.

The Substantive Case

I noted the Complainant view that the decisions in relation to the appointments and the comments made at interview demonstrated that the Respondent had discriminated against her.

I noted the alternative position put forward by the Respondent that the CID was awarded on the basis of order of merit from the panel in place since the previous fixed-term competition.  I noted further the Respondent position that the fixed-term appointment for 2024/25 was based on the interview board assessment of the candidates at interview and that the comment made was merely the Principal expressing good wishes to the Complaint, that the interview had concluded and that the comments had no bearing on the outcome of the interview process.

I will consider these arguments under the following heading:

         I.            The CID appointment

       II.            The Fixed-term interview process 2024/25 including the Principal’s comments

The CID appointment

I noted the following:

·       That in June 2022 the Complainant had competed for and been successful in obtaining a fixed-term teaching post with the Respondent for the academic year 2022/23 and that Comparator A was also appointed to a fixed-term contract from that competition.

·       That in June 2023 the Complainant had again competed for and been successful in obtaining a fixed-term teaching post with the Respondent for the academic year 2023/24 and that the same colleague (Comparator A) was also again appointed to a fixed-term contract from that competition

·       That in accordance with the provisions of Part A (1) of Circular 0023/2015 both the Complainant and Comparator A would be eligible for a CID should they be offered a further contract.

·       That the Complainant commenced maternity leave on 26 February 2024 and her maternity leave was covered by another teacher (Comparator B) from 1 February as she was on leave prior to her maternity leave

·       That in mid-February 2024 a permanent vacancy arose with the Respondent as a result of a resignation, leaving one post to be filled through a CID. Comparator A and the Complainant had the same qualifying service to be considered for this post.

·       That the Respondent decided to make application to the Department to appoint Comparator A to that CID based on her having been ranked first in the competition for the Fixed-Term post the previous June.

·       That the Complainant only found out about this appointment when she brought the advertisement for a further fixed-term contract (for the academic year 2024/25) to the attention of Comparator A later in 2024.

In considering this matter I paid particular attention to the relevant Department of Education Circulars (Circular No. 0044/2019 & Circular No. 0023/2015). 

I noted the Respondent submission that “the school decided that a CID application would be made” for Comparator A “as she was the candidate that scored the highest on the previous interview”. I noted the evidence first given by the Principal that this was in line with school Policy, however, I noted that it emerged in the course of the hearing that no such policy existed.  I noted further that there was, in fact, no previous practice in this regard in the school and that the decision to award the CID to the highest scoring candidate in the previous fixed-term competition was made in relation to this specific case.  It is clear to me, therefore, that there was neither policy nor precedent to be relied upon in relation to the decision to award the CID.

I noted that Chapter 2 (7) of Circular No. 0044/2019 states that when advertising teaching positions the advertisement may include reference to “whether or not a panel of suitable applicants may be set up from which future vacancies, may be filled” and it states that where such a provision is advertised it needs to be clarified in the advertisement that “permanent vacancies may not be filled from a panel established following interviews for a fixed-term post”.  In addition, it states that “where such a panel is compiled it shall be applicable to any vacancies filled within four months of the date on which the Board approves the successful applicant and the order of merit of the qualifying applicants.”

I noted that the reason for the CID was the resignation of a permanent staff member, therefore the appointment by CID of Comparator A was the filling of a permanent vacancy. In addition, this appointment was made in May 2024 well outside of the four-month timeline prescribed in the Circular.  It is clear that the Respondent appointed a person to a permanent post through the application of a CID from a fixed-term panel and outside of the lifetime of that panel. 

I noted that Chapter 5, Section 3.6 of Circular No. 44/2019 states that “determining order of seniority where two or more teachers commence employment in a permanent/CID capacity on the same day by the same method of appointment:-

If two or more teachers commence duty on the same day following an interview process, the Board of Management/ETB should establish their order of seniority based on the order the teachers were ranked in the interview process i.e. the teacher who was ranked highest following the interview process should be given the higher seniority ranking.”  However, the Circular described the importance of seniority as relating to “the order in which teachers are eligible to be placed on the re-deployment panel when the enrolment figures drop sufficiently to warrant the suppression of a post and in determining teachers’ eligibility for an acting post of responsibility.”

There is no reference, in the Circular, to seniority being a method for determining order of appointment to a CID.

I noted that the equal entitlement of the Complainant to be considered for that CID was disregarded, even to the point where the Respondent believed she had no right to be informed that there was a viable CID available.  I noted further that the Respondent had stated that it was open to the Respondent to fill the CID through appointment from the previous panel or through a further competition.  The Respondent chose to appoint through the ranking on the previous panel and explained its actions by saying that it was the school policy.  However, as outlined above there was no policy in place and no established practice.  The Respondent made the decision based on the instant case and provided no satisfactory explanation for that decision.

The Complainant has proposed that the reason for that award of CID was because the teacher who was appointed (Comparator A) was not on maternity leave and had a different family status than that of the Complainant.  I find that the Respondent has failed to show that “the discriminatory ground was anything other than a trivial influence in the impugned decision” and in these circumstances, I find that the Complainant’s complaint in this matter is well founded.

The Fixed-term interview process 2024/25 including the Principal’s comments

I noted the Complainant position that the comments made by the School Principal at the end of the interview in relation to wishing her well with her new baby alerted the interview board to the fact that she was on maternity leave and that this had the potential to have had an adverse impact on the outcome of the interview.  In that regard I noted the following:

·       that while the Chairperson of the interview board was aware of the maternity leave status prior to interview, the independent assessor was not

·       that the Respondent evidence was that the interview was over and that all questions had been asked

·       that after the comment had been made the Chairperson merely asked the Complainant if she had any questions and he then closed the interview

·       that the Respondent provided copies of the interview marking sheets which showed that all three members of the interview board scored the other candidate higher than the Complainant

·       that the interview marking sheets for the Complainant completed by Fr. Heany showed a reduction in one score that was neither notarised nor adequately explained at hearing

·       that no interview notes were provided by the Respondent.

The Complainant gave evidence that the successful candidate for the fixed-term contract was less experienced and had only provided ad hoc cover in the school, whereas she had worked for 2 full years.  The Respondent relied on the interview marking sheets to support its contention that the appointment was solely based on the assessment of the performance of candidates at interview and strongly contended that the other candidate outperformed the Complainant on the day.

In evaluating the arguments in this regard, I assessed the marking process, paying particular attention to each criterion on the interview marking sheet.

In relation to qualifications both candidates received the same mark, however, in all other categories all members of the interview board scored the Complainant lower than the successful candidate.  The notable exception to this was in relation to the category described as “Commitment to Values, Traditions and Ethos” where Fr. Heany initialled scored the Complainant 2 points higher than the successful candidate, but then amended his score to one point lower.  As outlined above he could not clarify the specific reason for that change in evidence at hearing.

Additionally, the Respondent did not present any documentation to inform what it considered to be positive and negative indicators under the various criteria; nor did it place any evidence before me as to how the interview board arrived at the scores attributed to both candidates.  In particular I noted that the Complainant, having 2 years’ experience working in the school was marked lower in relation to both “Classroom Management & Administration” and “Awareness of School Procedures” than a candidate who had only “ad hoc” experience.  However, there was no attempt made to explain how the individual members of the interview board had arrived at those conclusions. 

In relation to the comments made by the Principal, I appreciate that it may well have been her intention to pass on her well wishes to the Complainant, however, it cannot be said that the interview process had been completed at that time.  Even if questioning had been disposed of, the formality of ending the interview itself had not been done and more importantly, the scoring of the candidates was still outstanding.  I can only conclude that it was entirely inappropriate for those comments relating to the Complainants family status to have been addressed to her during the process.

In summary, I have concluded as follows:

·       That the CID was awarded to Comparator A in circumstances where the Complainant was commencing maternity leave and Comparator A was not; and no satisfactory explanation was provided for the decision to make that award based on the order of merit in the previous fixed-term competition.

·       That the Principal made inappropriate comments relating to the Complainant’s family status in the interview process for a fixed-term contract and that no such comment was made to Comparator B who had a different family status

·       That this comment was made before the competition was scored and may have had an adverse impact on the outcome of the interview process

·       That the Respondent failed to provide any evidence to explain how the interview board members arrived at the conclusions for the scores attributed to the candidates in circumstances where Comparator B had less experience than the Complainant and to demonstrate that the comments made did not have an adverse effect on the outcome.  I consider the absence of such evidence to be fatal to the Respondent’s defence of the inference of discrimination.

Accordingly, I find that the Respondent has failed to rebut the prima facie case of discrimination.

I have found that the Respondent has failed to rebut the prima facie case of discrimination on the ground of family status.  Accordingly, it is my decision that this complaint is well founded.

Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration.  The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, the Von Colson Principles apply, and any award must provide a real deterrent against future infractions.  

I direct the Respondent to pay the amount of €85,000 to the Complainant as compensation for the discrimination.

Discrimination on the ground of family status