Complainant

Respondent

Parties

Amy  Beer

Board of Management, St. John's Special School

Complainant

Respondent

Anonymised Parties

Representatives

Self - represented

Claire Bruton BL, instructed by Ronan Daly Jermyn

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00060441-001

08/12/2023

The Complainant alleges that she was discriminated against on grounds of gender and family status in relation to the appointment process for SNA positions for the 2023/2024 academic year, which took place in June 2023.

The Complainant states that it is important to note that she had been working in the school on a Fixed Term contract and had informed management in February 2023 of her pregnancy. The Complainant states that in April 2023, management were informed informally that she would be taking maternity leave commencing in August 2023, coinciding with her due date. The Complainant asserts that when a number of positions were being advertised in early June, she was encouraged to apply by the Principal through the What’s App platform.

The Complainant states that she was working in the school as a SNA on a fixed term contract at the time of her interview on 26 June 2023 and she was 33 weeks pregnant. The Complainant states that she is of the view that she was not offered a contract or position of any sort as she was 33 weeks pregnant and due to start her maternity leave on 7 August 2023 and two members of the interview panel were aware of this.

The Complainant states that she was shocked and confused at the nature of the interview, being so short and somewhat ‘casual’ in nature. The Complainant was under the impression that the interview went well on the basis of the comments made by the members of the interview panel. The Complainant states that when she was informed of her unsuccessful application, she responded to the Principal by email. In the reply, the Complainant expressed her concern and suspicion regarding the appointments made in relation to the unsuccessful nature of her application and the fact of her pregnancy and impending maternity leave. The Complainant highlighted that the advertisement had stated that there were 9 positions available. She states that due to her unsuccessful appointment, she requested some feedback including her interview notes and scores.

The Complainant states that an attempt to make a direct phone call to her by the Principal, on her personal number at 21:00pm, was not fitting with the line of emails or the working day and so the Complainant did not accept the call and advised that it was best to keep contact formal and in writing, via email. The Complainant asserts that following a very stressful day and heightened emotional pressure, she was not in a position to attend work for what was the final day of term on Wednesday 28 June. The Complainant informed the Principal by WhatsApp that she would be absent on sick leave for the following day, Wednesday and was going to visit her GP which was in line with school procedure.

The Complainant states that in response, the Principal via WhatsApp made a request for ‘a chat’ at 21:17pm. The Complainant reiterated that she was feeling unwell and that it would be best if they kept their communications by email going forward. The Complainant states that the Principal then responded by email at 21:29pm with some cutting remarks that made the Complainant’s concerns to be out of order and went so far as to call her concerns ‘accusations’.

The Complainant states that her scores and feedback albeit brief were subsequently provided wherein she received 270 marks out of 300. The Complainant contends that this was followed with an attempt by the Principal to soften the discrimination that she was subjected to, with incorrect information stating that the Complainant was ‘next in line’, something that was later corrected by the Chairperson of the BOM who stated that there are in fact six people ‘in front’ of the Complainant for potential positions that may arise for the selection of panel applicants. The same email also included a statement that it was believed that the Complainant was successfully to be appointed on the completion of interview, a point and decision that was then altered on the following day Tuesday 27 June 2023.

The Complainant states that she visited the GP at the earliest appointment she could get and explained her situation. She states that the GP decided it was best if she did not attend work and so certified her off sick due to work related stress on 28 June 2023. The Complainant states that her GP advised her that the stress of going into work for the last day of term would be too much for the Complainant and a significant risk with her being 33 weeks pregnant together with her recent high blood pressure.

The Complainant states that she was very upset to miss the last day of school and did not get to say goodbye to the staff and pupils that she had been working with all year long.  The Complainant states that after some time to allow the pressure of this situation to settle and assurances from the doctors at the Hospital that her baby was growing healthily, albeit with a continued series of high blood pressure, she decided to raise her concerns with the Chairperson of the Board of Management.

The Complainant states that she was seeking some clarity around the panel rights and where she stood if more positions were to be advertised once the academic year had started. The Complainant states that after some correspondence back and forth, she was informed that there was now in fact a one day a week fixed term contract and this was being offered to her as she was ‘first on the panel’.

The Complainant states that to the best of her knowledge, there were a number of other applicants ahead of her that should have been offered this one day fixed term contract; this may have included a person that was on a 0.5 contract. The Complainant states that she was invited for an informal chat, one-to-one, on school grounds in person with the Chairperson of the Board of Management with the focus to, as the Chairperson put it, discuss some ‘unresolved issues’ that he got the sense the Complainant might have.

The Complainant states that on 27 July 2023 at 37 weeks pregnant, she attended the in person meeting with the Chairperson at the school at 11am. The Complainant states that the discussion was casual but did focus on the communication prior to this point and a concern for how a professional relationship might work between herself and the Principal if she were to take the contract on offer. The Complainant states that this seemed unusual and out of the ordinary to be offered such a short contract, 4 weeks after being told that she was unsuccessful and to her knowledge all positions were filled.

The Complainant states that she proceeded to accept the contracts that were printed and handed to her with a deadline to accept or decline. She states that she felt very pressured to accept this position with no other arrangements in place and how declining same might adversely effect her maternity pay.

The Complainant states that she is firmly of the view that as her maternity leave was due to start so close to the following academic year and two members on the interview panel were aware of this fact, this was the reason that she was not offered one of the positions available and that she was unfairly given a lower ranking amongst applicants for this reason and this reason alone.

The Complainant submits that she has been subject to pregnancy related discrimination with regard to her application for SNA positions for the academic year 2023/2024 in circumstances where she was not offered one of the nine positions advertised and following the interview process, the number of positions available was purportedly reduced to 8.

The Complainant states that it is noteworthy that the Principal in respect of her marking sheets/scores had the Complainant down as ranked 10th when in fact her scores reflected that she was ranked in joint 9th place. The Complainant asserts that she does not accept the Principal’s assertion that she made an error in this regard.

The Complainant states that she is aware that three other candidates that interviewed for the posts who were all also working in the school at the time of the interviews, like the Complainant, albeit two of which were in their positions for lesser time in school, were all successful at interview and they were all offered positions but the Complainant was not. The Complainant states that she is firmly of the view that on this occasion, she was subjected to pregnancy related discrimination with regard to her application for the advertised positions.

Closing Statement

The Complainant has asserted that she has endured significant hardship due to pregnancy related discrimination in June 2023 in respect of her application for an SNA position at the Respondent school whilst currently holding a position of SNA having being successful in an application for employment a mere six months prior when the employer and interview panel members were ignorant to the fact of the Complainant’s pregnancy. The Complainant states that this case is not merely about legal violations; it is about the profound personal and professional impact on a dedicated educator whose career and well-being have been unjustly compromised. The Complainant asserts that she has been subjected to direct and indirect discrimination by the Respondent. She states that the adverse actions taken against her following her pregnancy disclosure were not only unlawful but also a breach of the trust and duty of care owed to her as an employee.

The Complainant states that the repercussions of this discrimination have been far reaching. She states that beyond the immediate financial losses, she has experienced emotional distress, professional setbacks and a tarnished reputation within her field. The Complainant asserts that her dedication to her students and profession was overshadowed by the discriminatory actions of her employer, leading to a loss of confidence and a sense of betrayal. The Complainant states that beyond the legal breaches, the human impact on her cannot be overstated. She states that her professional standing was undermined, her emotional well-being severely affected and her trust in the Respondent shattered.

The Complainant states that this discrimination occurred at a moment when she should have been supported, not penalised. The Complainant asserts that the treatment she endured left lasting damage both personally and professionally. The Complainant states that she believes she was discriminated against on grounds of her gender and pregnancy of which the evidence and cross examination highlight what the Respondent would have one believe is error and mistake but was in fact discriminatory in comparison to previous successful employment applications with the Respondent school.

The Complainant cites the following precedent caselaw in support of her case; Sarah Adam v Dublin and Dun Laoghaire Education and Training Board ADJ 28925, Naomi Hanlon v Emer McGrath ADJ 49995, Fionnuala Bonner v Donegal Council, ADJ 25462 Tina Lukrose v Riada Care Ltd. ADJ 43777, Raquel Viera Dos Santos Silva v Eteam Workforce Ltd ADJ 51855. The Complainant further cites the case of Astra Leisure and Ultra Fresh Services Ltd. and Svetlana Grodzicka EDA 2322 wherein the Labour Court cited the case of “Croc’s Hair and Beauty v Helen Acheron” ADE/16/58 linking the principles copper fastened by the recognition of equality on gender grounds in the Charter of Fundamental rights of the European Union which was incorporated into the Lisbon Treaty, set out in Directive 2006/54 which provided that any less favourable treatment of a woman related to pregnancy or to maternity leave constitutes unlawful discrimination.

The Complainant submits that the Labour Court in the Croc’s case stated that the special protection afforded to women from the commencement of their pregnancy until the end of their maternity leave is to be regarded as a fundamental right and that where a pregnant woman is treated adversely because of her condition during this period, the employer bears the burden of proving, on cogent and credible evidence that such treatment was in no sense related to her pregnancy.    

The Complainant states that it is imperative that employers in educational settings understand the gravity of pregnancy related discrimination. She states that such actions not only violate legal standards but also undermine the integrity of the educational environment. The Complainant states that in June 2023 she was on Point 1 of the SNA salary scale and had she not been discriminated against she would now sit on Point 3 of the scale with a permanent position and a secure career.         

The Respondent is a special school catering for children with mild to severely profound learning disabilities, between 4 and 18 years of age. For the 2023/2024 academic year, the school had 72 pupils and 42 staff (comprising 12 teachers, 22.5 SNAs, 2 specialist subject teachers, a school nurse, two caretakers, a chef). 

The school Principal is Ms. AN, and the school is governed by a Board of Management which is chaired by Mr. JL.

The Complainant alleges that she was discriminated on grounds of gender and family status in the context of the appointment process for SNA positions for the 2023/2024 academic year, which took place in June 2023. This is denied by the Respondent.

The Respondent states that the Complainant commenced working with the School in January 2023 as an SNA under a 0.5 Fixed Term Contract i.e. 16 hours, which expired at the end of the 2022/2023 academic term on 31 August 2023. It should be noted that at the outset of her contract the Principal agreed that the Complainant could work her contracted hours by way of four hours per day over four days a week, in order to facilitate the Complainant’s family arrangements namely school drop off and collection times for her own children.

The Respondent states that the salary for SNA’s (including the Complainant) and teaching staff at the school is unknown to the Respondent in circumstances where they are paid directly by the Department of Education, and the Respondent is not privy to this information.

It is acknowledged that the Complainant notified the Principal that she was pregnant early on in her pregnancy. The Principal undertook usual health and safety precautions and readjusted some of the Complainant’s duties to include her removal from the swimming schedule. This is usual practice given that staff work with children with challenging and aggressive behaviour and it is designed to ensure the health and safety of pregnant employees together with that of their unborn baby. 

The Respondent states that it should be noted that notwithstanding the Principal’s awareness of the Complainant’s pregnancy, she notified the Complainant on 2 June 2023 that vacancies for the 2023/2024 SNA panel were advertised and encouraged her to apply. It states that the Complainant approached the Principal and queried whether she felt it would be appropriate if she applied for the job share/career break positions that were coming up given that she was pregnant. The Principal explained to the Complainant that it was open to everyone to apply and that pregnancy would in no way hinder her ability to secure a position if she was successful at interview. She further explained that should the Complainant be successful she would go on paid maternity leave and the school would source a substitute to fill her role for the duration of her maternity leave.  The Respondent states that at no time did the Principal promise the Complainant a position.

The advertisement process garnered approximately 55 applications, which were of a very high standard and 16 applicants were shortlisted for interview. The designated panel for the recruitment process consisted of the Principal, Ms. RW- Deputy Principal, and Mr. VM, an independent panellist. Interviews were held on 26 June 2023. The appointments were conducted in line with the requirements of Circular 0051/2019 – Recruitment and Appointment Procedures for Special Needs Assistants.

The Respondent states that the interview was competency based in which set criteria and questions for the candidates in respect of that criteria, were established in advance.  The Respondent asserts that it is therefore not the case that the interview was casual in nature although it is acknowledged that the atmosphere and demeanour of the interview panel was cordial and friendly.  

The Respondent states that all of the applicants were all asked the same questions and they were each scored individually by the panellists against the following criteria:-

i.             Qualifications 

ii.           Experience of working with person(s) with an intellectual disability or complex special needs

iii.         Ability and willingness to assist children with complex needs to fully participate in various programmes throughout the school day including willingness to assist with personal and intimate care needs

iv.          Scenarios that may occur in a special school setting

v.           Flexibility and potential to be a good team member

vi.          Ethos and School culture 

The Respondent asserts that scores of each panellist were combined and the applicants were placed 1 – 16 on the SNA panel. It states that the Complainant ranked joint 9th in relation to the panel. However given her seniority, she ranked ahead of the other candidate who scored 9th on the panel.

The Respondent contends that the Complainant was recommended by the Principal for a 1 year fixed term contract in her email to the Patron of the Respondent dated 26 June 2023. It states that however, the following day, the Principal realised that she had overestimated the SNA allocation and vacancies on offer. She had anticipated that there were nine positions on offer however, in reality only eight places were on offer. This was due to the fact that two of the positions were advertised as being 0.5 positions, when in fact the position on offer was a full time post. 

The Respondent states that the Principal contacted all 16 candidates and confirmed whether they were successful or unsuccessful in securing one of the positions on offer. The Principal used the same template email to confirm the position to both sets of candidates.

The Respondent states that by email dated 27 June 2023 the Principal confirmed to the Complainant and the other unsuccessful applicants that they were not “successful at this time”. It states that the Complainant responded by email later that day to highlight her disappointment, and sought her scores, together with a written explanation as to why she was rejected for any of the position advertised. She observed the “casual” nature of the interview and outlined that she “hoped foul play or discrimination around her current pregnancy ….were not at play,” but she had her suspicions.

The Respondent maintains that on receipt of that email, the Principal realised that the template email to the unsuccessful candidates did not highlight their ranking/placement on the panel. It was in those circumstances that she rang the Complainant that evening, to explain her oversight and to discuss her issues with the process. However, the Complainant did not take her call and texted that she was not in the headspace for a chat and indicated that it “might be best we keep communications via email from here”-

The Principal was taken aback at the Complainant’s accusations in her email, particularly as she had encouraged her to go for the position. The Principal provided a detailed reply to the matters raised by the Complainant by email dated 28 June 2023, wherein she also provided detailed information on the Complainant’s placement as ninth on the panel, as well as the fact that she was the next in line should a position become available.By way of further email, dated 28 June 2023, the Principal set out the Complainant’s scores, together with the fact that as the school’s allocation changes, she will move up the line.

The Respondent states that it is noteworthy that the Complainant ranked 9th out of 16 candidates in the SNA fixed term panel for the 2023/24 academic year (which is the subject of the within claim) and in a previous interview process held in January 2023, when she was not pregnant, she ranked 7th out of 10 candidates.

The Respondent states that given her oversight in not referring to panel placements on the template email to unsuccessful candidates, the Principal contacted all other unsuccessful candidates to inform them that even though they didn’t secure one of the roles on offer, they were placed on the school panel. It is noteworthy that none of the unsuccessful applicants were pregnant.

The Respondent states that the Complainant contacted Mr JL, Chairperson of the Board of Management by email dated 15 July 2023 seeking clarification in respect of the recruitment process and her placement on the panel. Mr JL responded by email dated 23 July 2023, wherein he set out very clearly the position in respect of the vacancies on offer and the Complainant’s placement on the panel. He also outlined that a 0.2 contract (1 day a week) had become available. This was a very novel and unprecedented contract for an SNA. The school had applied to the Department of Education for approval of this contract and that approval came through after the recruitment process and establishment of the panel. It was therefore a 9th vacancy and was offered to the Complainant ahead of the other joint 9th on the basis of her seniority. The Chairperson made the point that “in accordance with the procedures of the Department of Education if you accept the 1 day per week position your maternity entitlements are protected; you get paid while on maternity, we get a substitute SNA in your place and you return to your position once your maternity ends. The position itself is fixed term until 1st August 2024.” He also made it clear that accepting the 0.2 position would not “deter” the Complainant from “taking up any other position which might arise during the year”.  

The Chairperson observed that the Complainant “might have some unresolved issues” and offered to meet her. It states that some further email communication and clarification took place between the Complainant and the Chairperson. Thereafter, theComplainant took the Chairperson up on his offer to meet, and this meeting took place on 27 July 2023. The Chairperson felt that this was a very cordial and constructive meeting. They discussed the panel, and her placement as well as the 0.2 contract. The Chairperson highlighted that there was an urgency to fill this place by 29 July 2023 as the paperwork needed to be submitted to the Department of Education by then. The Respondent states that the Chairperson was very open to discussing the Complainant’s dissatisfaction with the interview process and highlighted that there was a process for dealing with complaints.  The Chairperson was concerned that there might be, “some unresolved issues” between the Complainant and the Principal, and was keen to ensure a good working relationship between the two, which is particularly important in a school for children with special needs. The Chairperson was of the view that he had answered any queries that the Complainant had in respect of the process and allayed any concerns she had in respect of the process.  

The Respondent states that it has robust policies and procedures in place to include Dignity at Work and Grievance procedures which are available to all staff and the Complainant did not raise any issue or complaint under these policies.  The Respondent asserts that it was therefore with some surprise that the Chairperson received an ES1 form dated 22 October 2023 from the WRC, citing the Complainant’s claim that she had been discriminated against. On receipt of same, the Chairperson conducted a full review of the recruitment process and responded to the Complainant by letter dated 15 November 2023 outlining his view that discrimination had not taken place. It states that he also cited the strong tradition of the school upholding standards of equity. The Chairperson again offered to meet the Complainant to address her concerns.

The Respondent states that it is noteworthy that during the course of her maternity leave the Complainant was offered any vacancies that arose by virtue of her placement on the panel. By email dated 10 November 2023, the Principal outlined two options which the Complainant declined due to the “current proceedings in relation to the WRC, I regretfully do not feel it is within the best interest of either party to accept this offer”. The Principal replied by email dated on 30 November to outline that from the school’s perspective there was no impediment to her taking up a position and that the WRC proceedings should not play a part in her decision to accept a position on offer or impact her job prospects.

The Respondent states that in December 2023, the Complainant applied for 7 weeks parents leave which was approved by the Chairperson.  It states that in February 2024, the school undertook a SNA exceptional review and got an unprecedented 4.5 additional SNAs. This brought the Complainant right up the panel and she was offered a temporary fixed term position (32 hours) in March 2024 which she accepted.

The Respondent states that the Complainant’s employment history with the school is as follows:

•       9 January 23 to 31 August 23 - 16 hours a week

•       1- September 23 to 12 April 24 - 6 hours 24 mins a week

•       15 April 24 to 31 August 24 - 32 hours a week

The Respondent rejects any suggestion that it acted in a discriminatory manner towards the Complainant. The Respondent is a school which caters for children with disabilities and rejects and advocates against all forms of discrimination.  Furthermore, the Respondent is family friendly and operates a policy whereby staff have an opportunity to engage in job sharing, career breaks and flexible working. This is in keeping with the value the Respondent places on its staff and their wellbeing. The Respondent recognises that working with children with additional needs and challenging behaviours can be quite stressful. As a result, year on year the Respondent employs substitute staff to work in the positions of those who are on career break or in a job share. Consequently, staff turnover is very low.  

The Respondent states that it is also very keen to ensure that it is as flexible as possible with regard to all of its employees, in respect of their working arrangements. In fact, the 0.2 hour contract that the Complainant was originally offered was a new concept for the school and was due to a request by a staff member to work a four day week due to a bereavement.  

In all of the circumstances, the Respondent submits that the claim of discrimination on grounds of gender and family status should be dismissed in its entirety in circumstances where it is not well founded. There is no basis for the allegation of the Complainant that she was awarded a lower mark at the interview stage on the basis of her pregnancy/family status.

Legal submissions

The complaint form furnished on behalf of the Complainant fails to demonstrate any facts from which discrimination on grounds of gender or family status may be inferred in the appointment process for the SNA position. She provided no evidence that gender (pregnancy) or family status had any bearing on the outcome of the shortlisting process.

Section 85A(1) of the Employment Equality Acts 1998-2022 (‘hereinafter referred to as ‘EEA’) provides as follows: “Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary”.

Section 6(1) of the EEA, provides as follows:

        “…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).”

As set out in Teresa Mitchell v Southern Health Board [2001], the first requirement for a claim of discrimination is that the Complainant 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.”

The onus of proof is on the Complainant to establish a prima face case of discriminatory treatment on the basis of pregnancy/family status contrary to the Acts which provide, at section 85A that facts must be “established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …”

In Valpeters v Melbury Developments Limited, case concerning alleged discrimination on grounds of race, the Labour Court stated:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that 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 places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Respondent states that no such evidence has been provided to the Workplace Relations Commission by the Complainant. There is no prima facie case of treatment contrary to the Acts established by the Complainant.

The Respondent states that it can demonstrate that the interview process for the SNA positions in June 2023 was fair, non-discriminatory and the scores were objective on the basis of the merits and assessment of the candidates.

The Respondent submits that the Complainant’s summary submissions invite the Adjudication Officer to unlawfully encroach and interrogate the competition process for the position of fixed term SNA as she argues her ranking was lower on the basis of her pregnancy and maternity leave.

The Respondent states that it is well established that in cases in which discrimination is alleged in the filling of jobs, including any internal competition, it is not the role of the Workplace Relations Commission or the Labour Court to substitute their views on the relative merits of candidates for those of the designated decision makers or to determine who the most meritorious candidate was. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. The Respondent states that in the case of Moore Walsh v Waterford Institute of Technology, the Labour Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. The Respondent asserts that there is no evidence in the current proceedings from which any such unfairness or manifest irrationality arises. In adopting the threshold of manifest irrationality, the Labour Court has placed a high onus on Complainants, a threshold which the Complainant has failed to meet. The Respondent states that there was no irrationality in the outcome of the selection process. 

The Respondent cites the caselaw in the Labour Court decision of Board of Management of Scoil Mhuire Agus Iosaf Junior School v Brennan EDA2220, wherein the Labour Court rejected the claim of gender discrimination on the following basis:

a.     “The panel members all said that the Complainant did not sell herself at interview and did not perform as well as she was capable of doing on the day…

b.     In summary, the Court finds that the features of the selection and interview process identified by the Complainant and by which she seeks to impugn that process as having been discriminatory on the gender ground have all been cogently and rationally accounted for by the Respondent’s witnesses such that the Court is fully satisfied that the candidates were ranked on the basis of their performance at interview and the quality of their answers. There is no evidence that the Complainant’s gender, or that of any of the other candidates, played any role in the panel’s assessment or decision. The evidence before the Court was that the successful candidate outperformed the Complainant by a country mile on the day and was, on that basis and that basis alone, selected for appointment to the post of Principal.”

The Respondent cites the caselaw in O'Halloran v Galway City Partnership, wherein the Labour Court stated that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the prescribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise. The Respondent states that there were no discriminatory criterion applied in the competition for the position of fixed term SNA and all candidates were asked the same questions.

The Respondent further highlights the Labour Court case in O’Higgins v UCD, which was upheld on appeal by the High Court, which summarised the applicable principles in claims of alleged discrimination in selection processes as follows:

“1.           It is for the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.

2.                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.

3.                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.

4.                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.

5.                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.

6.                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.

7.                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.

8.                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.”

The Respondent contends that none of the above principles are demonstrated by the Complainant and indeed the onus required of her is a heavy one. It states that in Cooke v UCD, a case which involved a promotion competition, the Equality Officer could find “no convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as [the successful candidates].” The Respondent states that on that basis, the Equality Officer found no evidence that the selection process had been conducted in a discriminatory manner. The Respondent maintains that in the present case, the Complainant was judged and marked in an objective manner like all candidates.

The Respondent refers to the decision A Female Employee v A Printing Company, wherein the Equality Tribunal found an inference of gender discrimination as a result of the general lack of transparency, including the failure to have a formal marking scheme referring to clearly defined assessment criteria and the failure to retain documentation. The Respondent states that this case is distinguished from the Complainant’s case as the selection process was conducted in line with fair procedures, transparency and objective criteria.

The Respondent states that it is clearly the case that the Complainant feels she should have received a more preferential mark or higher ranking than the other candidates. It states that no discrimination can be inferred from this, a likely simple assertion. In this regard, reliance is placed on the decision of Mancini v University of Dublin where it was held that “no evidence of age discrimination can be drawn from the allegation that the successful complainant should have, in the complainants view, being given lower points than she was or that she herself ought to have received higher marks in some of the categories than what had been awarded.”

In summary, the Respondent rejects the Complainant’s claim that she was discriminated against on the basis of gender and family status in relation to the appointment process for SNA positions for the academic year 2023/2024.

The Law:

Discrimination:

Pregnancy-related discrimination is discrimination on the ground of gender. Section 6(2A) of the Employment Equality Acts 1998-2015 provides:

“Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Family status is defined by the Acts as follows;

“family status” means responsibility –

(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

Burden of Proof:

Section 85A of the Acts provides for the allocation of the probative burden between a complainant and a respondent as follows:

“85A.–(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In Mitchell v. Southern Health Board [2001] ELR 201, the Labour Court held:

“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 is no infringement of the principle of equal treatment.”

In Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In Teresa Cross (Shanahan) Croc’s Hair and Beauty v. Helen Ahern, EDA 195 (the “Cross Case”), the Labour Court held:

“It is abundantly clear from these [Court of Justice of the European Union] authorities, and from the legislative provision of the European Union, that women are to be afforded special protection from adverse treatment on account of their condition, from the commencement of their pregnancy until the end of their maternity leave. The entitlement to that protection is to be regarded as a fundamental right within the legal order of the Union which the Courts and Tribunals of the Union must vindicate within the limits of their jurisdiction. It seems equally clear that where a pregnant woman is treated adversely because of her condition during this period of special protection the employer bears the burden of proving, on cogent and credible evidence, that such treatment was in no sense whatsoever related to her pregnancy. This is a matter that the Court will consider further in addressing the application of the burden of proof in cases such as the instant case.”

As noted in Chapter 4.154 of “Employment Equality Law” 2nd edition (Bolger, Bruton and Kimber):

“It is now well established that the fact of pregnancy is sufficient in itself to shift the burden of proof to the employer, once the applicant has established less favourable treatment. It is then for the respondent employer to prove that the less favourable treatment was not on grounds of the pregnancy.”

The Employment Equality Act 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.

In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union made it clear that where such a right is infringed, the redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions (the “Von Colson Principles”).

Having carefully examined the evidence adduced in the within claim, I find that the Complainant has established a prima facie case of discrimination on grounds of pregnancy in the context of the appointment process for SNA positions for the 2023/2024 academic year. In that regard, I note that the Complainant had already been performing well in the school; in an interview 6 months previous she was successful and came 7th out of 10 candidates appointed. In relation to the interviews which took place in June 2023, I am cognisant of the testimony of the Complainant where she stated that two of her colleagues working in the school a lesser amount of time than the Complainant were successful in the selection process and were offered positions. I note that the Complainant was the only person in a contracted position that was not successful in getting a position. The Respondent accepted that there was an error made in the ranking of candidates by the Principal, in that, she had the Complainant ranked in 10th place which was incorrect as the Complainant should have been ranked joint 9th according to the marks.

The Principal gave testimony that she thought she had 9 positions but that it was only when she was putting SNA’s towards classes on the morning of Tuesday 27 June that she realised her error and she stated that Ms W, the Deputy Principal said to her that “we have more SNA’s posts than we should have”. The Principal stated that although the advertisement had stated there were 9 positions available, the school had miscalculated.

The Complainant states that two of the members of the Interview Panel were aware she was pregnant and of her impending plans to commence maternity leave on 7 August 2023 and this resulted in her being discriminated against on grounds of pregnancy and not been offered a SNA position for the academic year 2024/2025.

I note the evidence of the Complainant wherein she stated that as of 28 June, there was no position for her but then when she raises issues of discriminatory treatment suddenly the Respondent has come up with an alternative position for her.   

It is noteworthy that the Complainant was recommended for a 1 year fixed term contract in an email from the school to the Patron of the Respondent dated 26 June 2023. In my view, it is hard to reconcile this fact with the testimony given by the Principal where she states that the following day, Tuesday 27 June, she realised that she had overestimated the SNA allocation and vacancies on offer. She had anticipated that there were nine positions on offer however, in reality only eight places were on offer. The Principal stated that this was due to the fact that two of the positions were advertised as being 0.5 positions, when in fact the position on offer was a full-time post.

In relation to the evidence given by the Principal regarding an error/mistake she had made with regard to the number of positions advertised and the subsequent miscalculations following the outcome of the interview process, in that, there were only 8 positions available; I found her evidence on the issue disjointed, lacking in credibility and unconvincing. Similarly, I found that the evidence provided by the Chairperson lacked cogency and did not tally with that of the Principal and the events as they unfolded.

I note correspondence from the Chairperson of the Board of Management dated 23 July 2023 wherein he outlines to the Complainant that a 0.2 contract (1 day a week) had become available. The Chairperson had stated that this was a very novel and unprecedented contract for an SNA and that the school had applied to the Department of Education for approval of this contract and that approval came through after the recruitment process and establishment of the panel.  

The Chairperson stated while a .2 SNA contract had been offered to Ms AB, that upon review of the situation, in actual fact the Complainant had longer service than Ms AB and the school withdrew the offer from Ms AB and the position was offered to the Complainant on 22 July 2023. The Chairperson stated that the school needed an answer from the Complainant quickly so as to get the paperwork over to the Department of Education and get the Complainant’s details on to the payroll system. The Chairperson stated that the .2 contract was offered to the Complainant and she took it up.

Based on the evidence heard, on balance, I prefer the evidence of the Complainant as I found her to be a credible witness; she provided clear, cogent and compelling testimony on the issues. In my view, there were a series of purported errors/mistakes made by the Respondent. I am cognisant that the advertisement stated that there were 9 positions available. It is noteworthy that the Respondent school sought patron approval for 9 positions on 26 June following completion of the interview process. However on 27 June, there are only 8 positions available.

I note that there was an error made in the rankings of candidates on the Principal’s scoring sheet where she had ranked the Complainant 10th where in fact when the scores are totted up she was in joint 9th place.  

The school states that there was an error made in the context of a 1 day a week contract offered to Ms AB by the Principal on 27 June when following a review by the Chairperson in July 2023 which was triggered by the Complainant’s complaint, it transpired that the Complainant was in fact the senior candidate and the 1 day a week was retracted from Ms AB and subsequently offered to the Complainant.  

On the basis of all the evidence adduced in the within matter, I find that the Respondent has not rebutted the inference of discrimination raised by the Complainant. The Respondent failed to provide cogent and credible evidence to demonstrate that the treatment of the Complainant in relation to the appointment process for SNA positions for the 2023/2024 academic year was in no sense related to her pregnancy.

Having heard the entirety of the evidence, I have no doubt that the Complainant’s pregnancy was a significant influencing factor in her not being appointed following the selection process for SNA positions for the 2023/2024 academic year.  I am satisfied that the selection process was tainted and lacked transparency and the Respondent was unable to establish that the treatment of the Complainant was unconnected to her pregnancy. In all of the circumstances, I find that the Complainant has established a prima facie case of discrimination on grounds of gender in relation to her non appointment for SNA positions for the 2023/2024 academic year.

I find that the Complainant has not established a prima facie case of discrimination on grounds of her family status.  

I find that the Complainant was discriminated against by the Respondent on the ground of gender.

I order the Respondent to pay the Complainant €40,000 in compensation for the effects of the egregious nature of the discriminatory treatment.

The total award is redress for the infringement of the Complainant’s statutory rights and therefore is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997. (as amended by Section 7 of the Finance Act, 2004).  

I further order that the Respondent carries out a review of its procedures and training in relation to its recruitment and selection processes to ensure that they are fair, objective and transparent and comply with the requirements of the Employment Equality Acts.

I find that the Complainant was not discriminated against on the family status ground.

Employment Equality Acts, discrimination, gender, family status, pregnancy