ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050384

Parties:

	Complainant	Respondent
Anonymised Parties	A Post Primary Teacher	A Post Primary School

Representatives

David Pearson,

J W O'Donovan LLP

Sarah Daly, BL Instructed by Ronan Daly Jermyn

Complaint:

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-00061778-001	23/02/2024

Date of Adjudication Hearing: 7 March and 8 April 2025

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

On 23 February 2024, the Complainant, a French national and Teacher in French and English submitted a complaint of Discrimination on grounds of race against the Respondent Post Primary School.

The Complainant submitted that she had been discriminated against in “getting a job “in relation to her conditions of employment and been subjected to a discriminatory dismissal.

The most recent date of Discrimination was recorded as 31 August 2023.

At the outset of this complaint, the Complainant detailed her representative as her Union, which was later substituted by the appointment of Mr. David Pearson, Solicitor on 31 May 2024.

On a direct petition from Mr. Pearson, a postponement was granted for the first scheduled hearing of 17 June 2024.

Ms. Antoinette Vahey, Solicitor at Ronan Daly Jermyn LLP, came on record for the Respondent on 11 June 2024.

On 31 January 2025, the Respondent sought written submissions from the complainant side.

The Hearing was released for 7 March and 8 April 2025.

Time offered to explore informal resolution was unsuccessful.

Both parties made helpful written submissions.

Ms. Claire Macken, Solicitor, replaced Ms. Vahey as instructing Solicitor.

During the course of the hearing, I learned that the complainant was actively seeking teaching jobs. As I had some concern for the interface of this case and that active pursuit, I canvassed the parties’ views on my proposal to anonymise the Decision in the case.

The proposal was accepted by both parties.

I have exercised my discretion under Section 89(1) of the Act and have anonymised my Decision as an appropriate action.

Supply and publication of decisions and determinations.

89.— (1) A copy of every decision of the Director General of the Workplace Relations Commission under this Part shall be given—

(a) to each of the parties, and

(b) to the Labour Court,

and every such decision shall be published on the internet in such form and in such manner as the Director General of the Workplace Relations Commission considers appropriate.

The Respondent raised two Preliminary issues at the outset of the hearing.

1. The Complainant has not left any footprint of disquiet regarding Discrimination on grounds of race during her employment. The Respondent contends that they had no awareness of this matter until the complaint materialised at the WRC.

2. The claim is statute barred as the Complainant was notified of the Respondents’ decision not to offer her teaching hours over academic year 2023 / 2024 on 17 April 2023. She concluded her teaching duties in June 2023, and her contract expired on August 31, 2023.

The Complainant gave her evidence under oath at hearing.

Mr. Z, the Principal, took the oath to accompany his evidence.

During the hearing, I shared with the parties that I was keen to see the School Equality Policy and details of any training on this topic. The school undertook to source the Policy which they believed emanated from their parent Dept of Education.

On 17 April 2025 the Respondent shared details of a 2012 Staff Bullying and Harassment Policy with a cover note from the Joint Managerial Body which reflected work currently underway on policies of bullying and harassment.

In response, the Complainant confirmed that she had not seen sight of this policy during her tenure and refreshed her mention of the Teacher handbook and roll book provided to her.

A careful reading of this document captured the complainant as the

Subject Dept Co Ordinator in French

at the school for academic year 2022-2023.

Of interest, it also carried a clause at 13.0 that it was.

” Unacceptable to be disrespectful to someone’s race “

other grounds of Discrimination were also highlighted.

However, I could not identify a readily accessible framework or procedural pathway of what to do as a teacher in the school if you believe you have been discriminated against.

I was surprised by this glaring omission in a school of an undisputed multi-cultural student base.

As the Adjudicator in this case, I am uncomfortable by this omission. I have reflected on this in light of the events of this case.

I would like to request that the Respondent and their JMB take some time to consider the IHREC prepared.

Ireland and the 6th Monitoring Cycle of the European Commission against Racism and Intolerance

(Irish Human Rights and Equality Commission, June 2024)

“The population of Ireland is increasingly diverse, including in terms of ethnicity, nationality, religion, sexual orientation and gender identity.

In 2022, 12% of those living in Ireland were non-Irish nationals, while one in five had been born in another country (census 2022)

This should be followed by an early collaboration at the Board of Management level / Joint Management Board to explore policy formulation in employment equality and training opportunities through Diversity, Equality and Inclusion for the benefit of all.

Summary of Complainant’s Case:

Over the course of 23 and 27 February 2024, the Complainant submitted her complaint of Discrimination on grounds of race to the WRC. She introduced herself as a Post Primary Teacher for two subjects recognised by the Irish Teaching Council and indicated that she would be represented by ASTI, her Union.

The Complainant worked as a Teacher with the Respondent from September 2016 to May 2018 and September 1, 2019, to 31 August 2023.

On 23 February 2024, the complainant wrote that she had been Discriminated on grounds of her French nationality in getting a job and in her conditions of employment.

“Treated less favourably compared to a younger less experienced Irish Teacher with less seniority “

She submitted that she had been dismissed for discriminatory reasons.

The Complainant later clarified that she was not making a complaint on grounds of age or advancing an argument for discriminatory dismissal.

Ms A, an Irish national, was the named comparator for the purposes of this case.

The Complainant raised a disparity in the contracts issued by the respondent to both the complainant and Ms A, which she contended resulted in a stronger potential for alignment with a permanent contract (contract of indefinite duration) for Ms A.

The Complainant added that her teaching hours had been eroded in favour of Ms A, prior to her being denied a follow up teaching contract in September 2023.

She maintained that insufficient regard was had by the respondent to her capacity to teach two subjects of French and English.

“I believe that because I am French, I was treated less favourably than my younger colleague by Mr Z (Principal) who gave me more precarious, part time contracts and refused to consider me for teaching certain classes for which I am however qualified “

On 27 February 2024, the Complainant emailed the WRC and clarified that the most recent date of discrimination relied on was 31 August 2023.

The Complainant sought the remedies of re-instatement and/or compensation through Von Colson principles. She did not teach in 2023 academic year and has done some substitution work in the interim in a different school setting.

Complainant response on preliminary issues:

1 The Complainant has filed separate submissions to the WRC.

2 The Complainant denied lodging her complaint outside the statutory time limits permitted.

Mr Pearson, on behalf of the complainant submitted that proper attention be focused on the date 31 August 2023 as the complainants last known date of employment, where discriminatory treatment endured.

Habitually during April of each year, a discussion on next year’s teaching pattern occurred through a series of “phone calls “.

Mr Pearson clarified that the complainant had been represented by her Union first in time in this case and she had then instructed a Solicitor, Mr AB to conduct local discussions with her employer aimed at resolving the lack of a follow up contract in 2023.

The Complainant was represented by Mr AB during April, May and June 2023 and not by her Union. She understood that Mr AB had acted on her decision to refer her case to the WRC much sooner.

Mr Pearson requested some understanding of this reality for the complainant as she had a genuine belief that her case had been processed to the WRC from June 2023 and if necessary, to apply the provisions of section 41(8) of the Workplace Relations Act, 2015 on an extension of time for reasonable cause.

It was not until 15 January 2024 that she received correspondence from Mr AB that he had not lodged a complaint on her behalf a WRC. He informed her that he was reluctant to refer the case as he had some doubt that the legal strategy, he wished to adopt would be upheld on the school’s management of the job share contracts vis a vis CID.

The Complainant acted promptly after this by submitting her complaint to the WRC within the statutory time limit permitted, 24 August 2023-23 February 2024. She had experienced some difficulty in sourcing a legal representative unconnected with the respondent school.

Mr Pearson contended that the delay in putting this case before the WRC was not of the complainants own making and could be adequately explained and justifiably excused in accordance with the established test in a

Cementation Skanska v Carroll

O Donnell v Dun Laoghaire Corporation [1991] ILRM 30

Mr Pearson sought an expansion of time as permitted in Section 41(8) of the Workplace Relations Act, 2015.

Substantive Case:

The Complainant is a French National resident in Ireland since 1998.

She has claimed Discrimination on grounds of her race in contravention of the Employment Equality Acts 1998-2015. Her comparator, Ms A is a younger and less experienced Irish national. The Complainant was treated less favourably than Ms A in teaching hours, contract stability and employment benefits.

The Complainant worked at the Respondent Catholic fee-paying boys Post Primary school on two occasions on temporary contracts of employments from September 2016 to May 2018 and September 1, 2019, to 31 August 2023. Pupils at the School must choose from French, German or Latin as a second language.

The Facts:

1. From September 2016 to May 2017, the Complainant worked as a teacher in French language on a fixed term, part time, privately paid contract. 5 hours, 15 minutes.

2. She resumed in September 2017 on the same arrangement on 11 hrs, 10 minutes to 31 May 2018

3. She resumed in September 2019 to 31 May 2020 on 18 hrs 40 mins on the same arrangements.

4. In September 2020, the complainant secured a hybrid arrangement of Job Share, where her hours were increased to 19 hrs 48 mins state funded and 1 hr 12 mins privately funded.

5. This continued for the academic year 2021 at 16 hrs 40 mins state funded. The Complainants hours were due to be reduced to 7 for the forthcoming year, but following Union intervention, her hours were increased to 11.

6. This continued for the academic year 2022 at 11 hrs.

7. The Complainant was not offered work in academic year 2023.

Ms A came to the school as a newly qualified Irish Language teacher in 2020. She was paid privately.

In 2021, Ms A was allocated 14 hours of French teaching.

In 2022 Ms A was allocated 15 hours of French teaching.

In 2023, Ms A was allocated 14 hours of French teaching.

The 2023 allocation to Ms A usurped the complainant’s hours.

In May 2022, Mr Z, the Principal informed the complainant that there were reduced hours available for her over the forthcoming academic year. When the complainant queried this, she was informed that she was “only qualified to teach one subject “, which was false in light of the complainant registration with the Teaching Council for French and English.

The Complainant submits that the usurping of her teaching hours by granting these to a less experienced Irish colleague “demonstrates clear discriminatory treatment on the grounds of nationality. This was compounded by the absence of an open recruitment process.

Complainants Evidence:

The Complainant has worked at the school for two successive periods from 2016 to 2023. The break in service was to work in another school on a full-time substitution basis.

She understood that there were two different contracts on offer at the respondent school to cover temporary service (fixed term). She had always taught French at the school.

1 privately funded by the school, permanency after 4 years.

2 directly funded by the Dept of Education, accelerated route to permanency after two years.

All 6 contracts were exhibited.

Advertisements were placed on education posts website between June and August annually.

Ms A, the comparator taught mostly Irish and some French, when no one else was free. This role was advertised in 2021 as 14 hrs.

French and Irish being the required subjects and the complainant was unable to apply.

Her request for additional private hours was refused in May 2022, when Mr Z told her that she didn’t have a second teaching subject.

He told her that he didn’t have to justify his position and the complainants’ hours were reduced to 7.

The Complainant requested a second meeting to understand why she was being treated differently to Ms A.?

She was advised to apply elsewhere and reflected “I felt like I was not good enough “

Following Union intervention in June 2022, the 11 hours, job share contract eventually replaced the 7 hrs first offered.

The Complainant worked an 11-hour job share contract during the academic year 2022 but was keen for permanency.

On 3 February 2023, the Complainant received an unsuccessful outcome of her Adjudication appeal to access a CID via Circular 024/2015.

1 2019 did not count as privately paid.

2 two years by 2022 contract

3 11 hours derive from job share.

4 Circular 0024/2015 covers absence on career break or secondment.

5 no connection necessary on subjects between job sharers

6 jobs share arrangement excluded from qualification for CID 2022 school year.

The Complainant was unable to satisfy the criteria of covering for an absent teacher via career break or secondment by reason of her “job sharing arrangement “

“The Board of Management as the teacher’s employer should consider the adjudicators decision. where the board chooses not to comply with the decision of the adjudicator the Dept should be formally notified of this decision in writing.

it should be noted that it may be open to the employee to bring her claim to the Workplace Relations Commission in that event.

Should the Board wish to grant a CID in accordance with this adjudication decision, please complete the relevant CID form and return it ……. “

In May 2023, the Complainant instructed her Solicitor to write to the school to pursue an opportunity to secure a contract of indefinite duration.

“Clearly it is the case that all people in employment are entitled to equal and fair treatment, and I have no doubt that School subscribes to this concept. My client is merely concerned about her hours going forward and needs reassurance from you in this regard ….

…. A simple reassurance that her hours for next year will not be less than her current hours will suffice. I emphasise that my client has two subjects, and regard should be given for this “

The school responded two weeks later and replied that the demand for French had declined, and the school did not have hours available in either French or English for academic year 2023.

Mr Z referred to an earlier unsuccessful quest by the complainant for a contract of indefinite duration. The Complainant submitted that she had not seen this letter at that time.

The Complainant said that she had endeavoured to formalise her complaint to the WRC and was shocked in January 2024 to learn that this had not occurred.

The Complainant submitted that she had checked the school IT timetable on 29 August 2023 and saw that 14 hrs of “mostly French “teaching hours were listed. No one told her about this opportunity. She was also aware that 3 hrs teaching in French had been allocated to a colleague in training.

She confirmed that she had not raised a grievance as none was presented to her. She had really wanted a contract of indefinite duration. She felt abandoned in her role.

In cross examination,

The Complainant confirmed that she had worked a mix of both private and Dept contracts at the school. It was typical to commence on the entry level on private and gravitate towards the dept contract. She had asked for a CID on Dept hours but was informed that only job share available.

She was unaware of any lottery for school places as she understood that it was universal practice for staff to get places for their sons.

The Complainant confirmed that she had never taught English at the school as she had never seen an advertisement for English. The Complainant accepted that the assignment of teaching hours was difficult to manage.

In 2021, she asked for 5th year French, but this was given to Ms A, who now has a CID. The complainant was unaware that private and dept hours could be linked in an amalgam for CID purposes.

The Complainant recalled contacting the Union in September 2021 who reminded her to prioritise her quest for CID, and she was not advised to challenge the 5th year allocation.

Ms Daly asked the Complainant whether the occasion of April 2023 was the first instance of her being told that hours might not be available to her?

The Complainant reflected on May 2022 when Mr Z said there would be very few hours for her the following year, and it would be better if she went somewhere else. This was later remedied with the 11 hrs. She reaffirmed that the process of contract navigation was not explained to her at her time. She recalled Mr Z said she was like another teacher (named) who had one subject only.

The Complainant did not agree with Ms Dalys reliance on changes and reductions in the organisational structure at the school, where there were now 4 classes of 28 replacing 5 of 24, one less 1st year class and wellness hours in junior cycle. Classes were now a 1 hr.

The Complainant re-affirmed that Ms A had been chosen over her and she dismissed the organisational changes. She denied that Ms A was more suitable to the timetable.

When Counsel asked the complainant if she contended that had she been Irish she would have been considered for this work? The complainant responded “If I had been Irish, I believe my second subject would have been recognised “She elaborated by stating that she took the message from Mr Zs comments that “If you are not Irish, you can’t teach English “.

She accepted that both she and Ms A responded to advertisements, interviewed and taught in a parallel process at the school.

She has since made application for her two subjects for a position at an alternative school.

The Complainant replied that in April/ May 2023, Mr Z had told her that there were no hours for the next year, and this was the first occasion where she had heard “zero hours “

She had been in contact with her then Solicitor, Mr AB and she approved the letter sent to the school and received the first reply.

She disputed that she had not done enough to process her complaint as discrimination had never been mentioned by her.

The Complainant confirmed that she had not experienced any racial slurs or negative remarks arising from her race.

The Complainant confirmed that it was December 2024 when she contacted the WRC as she had presumed that the complaint had been filed. She was unaware of how things worked in that regard. She had not seen the last response from Mr Z to Mr AB.

In clarifications, the Complainant seemed uncertain on what was the nature of the case she had planned to lodge at WRC during Summer of 2023.

She mentioned a contract of indefinite duration but equally mentioned a strong contention that she had been discriminated against when her employment had not been continued and when Ms A stepped into her teaching hours in September 2023.

The Complainant confirmed that she had submitted both of her registered qualifications on her CV which recorded her as a French national and was apparent every time she applied.

She confirmed that she had “looked after “Ms A on her arrival. She understood that Ms A had not been assessed in French at interview as there was no one with competence in French available.

The Complainant confirmed that she had a positive experience at the school and was permitted to engage in extracurricular activities linked to French such as student exchanges to Brittany.

It was clear from her interview that the school had full knowledge of her being a native French speaker. She clarified that she was not specifically qualified in special education teaching and concluded that her skills were not recognised. She had, however taught special education for 1 hr in her first year.

She did not want her negative experience to be endured by others. She was not complaining of Ms As’ youth but rather her own less favourable treatment at the school. She did not make a case for discriminatory dismissal.

She had never been given an opportunity to redeploy to any other associated school. She named one teacher who taught French only, was made permanent and then resigned.

Mr Zs reference to another teacher having just one subject ended as she left the school in May 2022 on foot of receiving Dept hours in another school.

In closing, Mr Pearson accepted the anonymisation of the Decision and summarised the conclusion of the case as:

The Complainants hours were reduced in teaching French and subsumed into the work pattern of an Irish teacher. The Complainant concluded that she was denied a contract of indefinite duration due to her nationality.

The school had special education teaching hours available. Mr Z confirmed that these hours were taken and were not Dept hours.

Mr Pearson contended that the motivation for these actions was the complainant’s race, when her only goal was to secure a CID, she lost hours in French and no regard was given to her second subject, English.

Summary of Respondent’s Case:

The Respondent operates a Boys Catholic Secondary school of almost 700 students. The funding structure is primarily sourced from the Department of Education and augmented locally by fees paid per student. The Respondent currently employs 56 teachers, 43 of whom of funded by the Department who make an annualised financial outlay based on student / teacher ratio.

The Respondent has disputed Discrimination against the Complainant on race grounds.

Ms Daly BL outlined the distinction between both cohorts of teachers employed at the school.

1 Department funded teacher 2 Board of Management funded teacher.

Sick pay and Pension 34-week tenure

Salary over 12 months

Incremental credit

Maternity benefit

The historical context of this case lies in the allocation of hours previously aligned a Job Share Teacher in possession of a Contract of indefinite duration at 11 hrs.

The surplus hours of 11 hrs were pooled and reassigned at the discretion of the Board of Management by means of a department funded teacher contract.

Both Department funded and Board of Management funded contracts carry a different launch pad to securing a contract of indefinite duration.

The Respondent habitually commences new teachers on a number of fixed term contracts. A vacancy in its purest form has rarely been available outside of this model.

In the case of a private funded contract, transition to a CID follows the statutory framework of four consecutive fixed term contracts.

In the case of a department funded contract, a CID manifest after two fixed term contracts, an exception being from a “job share “arrangement.

The Complainant began her employment at the school in 2016 as a French teacher on a privately funded contract which was renewed in 2017.

She left in May 2018 with a view to assist her child secure entry to a different school.

The Respondent contended that the complainant was offered a place at the school for her son, which has been disputed by her.

In 2019, the complainant returned to the respondent school in response to an advertisement for a French teacher on a privately funded contract, 34-week tenure to 29 May 2020.

The Complainant expressed an interest in accessing “Department hours “and subsequently responded to an advertisement for cover for “a job share “and was appointed on 19 hrs 48 mins.

This was augmented with a privately funded contract for 1 hour 12 minutes per week.

The Department hours contract was replicated over 2021 (16 hrs, 40 mins) and 2022 (11 hrs) academic years.

A series of organisational changes followed at the school which were delayed but implemented in 2023.

1 Class size intake from 5x24 to 4x 28 new entrants 1 (a) class duration moved to 1 hr.

2 400 hrs wellness junior cycle which impacted foreign language subjects as prior to 2020, all new entrants had 2 French classes per week with an option of adding two other languages. The choices were then reduced to one election from A. Languages or B art / geography.

This meant that no student chose to study two languages, and German has emerged as most popular.

2019 42 teaching hours required in French.

2022 47 hours

2023 35 hours

2024 36 hours

During the lifetime of this claim, there were three teachers in the French language.

1 Ms S. 30-year tenure, 22 hr department contract

2 The complainant

3 The comparator, Ms A

In tandem, the school has lost 12 teachers through unavailable teaching hours since 2020.

2020 -2025 2025

10 Irish national 2 Irish national

1 Uk national 1 redeployment, Irish national

1 French national

Privately funded contracts have reduced from 19 in 2020 to 10 contracts in 2025.

The Comparator

The Board of Management advertised for a privately funded Irish and French contract on 34 weeks in 2020. Ms A was appointed and has been re-appointed year on year.

The Complainant did not apply or make an expression of interest regarding the French component of the job and confined her applications to the “job share “contract and its renewal year on year.

The application for CID, 2022

During 2022, the Complainant sought a CID with the support of her Union, which was initially refused and entered an Adjudication by Mr Peter Ward SC, who determined in February 2023, that the “job share “allocation did not meet the criteria for CID.

Circular 0024/2015 The Ward Report.

Implementation of the Recommendations of the Expert Group on fixed term and part time employment in primary and second level education in Ireland. (2015/2016)

1 revised terms and conditions for teachers

2 Process and Procedures for CIDs

3 Adjudication

4 Redeployment Scheme

5 Compliance through fairness, transparency and probity (public appointments)

Audit

A joint meeting with Mr Z preceded this process, where the union “asked that consideration be given to providing additional non “job share “hours to the complainant to bolster her CID application “

This was unsuccessful as “the respondent had no additional French teaching hours to allocate at that time “Race was not discussed at this forum.

The Respondent made the decision to restructure the job share hours which facilitated the complainants post to maths on the basis of need.

The Complainant learned of this from Mr Z and while disappointed, did not link the decision to her nationality.

On 17 April 2023, the Respondent wrote to the complainant and notified her of the termination of her employment on 31 August 2023.

On May 2, 2023, the Complainants solicitor wrote to the Respondent and sought to position the complainant for continuance with the school through her two registered subjects. There was no scope to accede to the request. The Complainant’s nationality was not raised.

The Respondent denied racial discrimination towards the complainant.

Ms Daly argued that the school taught a multi-cultural student population “from a diverse range of nationalities, Ireland, UK, USA, Spain, India, Pakistan, Bangladesh, China, Portugal, South Africa and Middle East. There is a zero-tolerance approach to Discrimination.”

Having a native French speaker was viewed as a clear benefit at the school.

The Respondent contended that the various policies of grievance/ equality / dignity were open to the complainant but remained unused by her.

The Respondent relied on Melbury Developments ltd and Arturs Valpeters EDA 0917 to capture the burden of proof necessary in the instant case.

The complainant is expected to first establish facts from which discrimination may be inferred.

Graham Anthony and Co ltd v Margetts, EDA038 at the Labour Court

That the complainant must look further than the ground relied on and “… must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred “

Ms Daly has argued that the complainant has not made out a prima facie case of discrimination. The Complainant has confined herself to not being offered teaching hours for 2023 academic year.

The Respondent outlined that the decision not to have the complainant back in 2023 arose from lack of availability of teaching hours and organisational changes and was not an action of discrimination.

The Respondent, through Mr Z had offered to meet with the complainant in May 2023, but she did not avail of the offer. At hearing the complainant said that she had not been made aware of this invitation as she had not seen the contents of May 29 letter.

The Respondent had not received any complaints of discrimination on grounds of race during the complainant’s tenure.

Evidence of Mr Z, Principal

Mr Z has served 8 years in the role of Principal in this fee charging school of 700 pupils and 56 teachers, 7 of whom were paid privately by the school.

He set out the distinction between

1. Department Contracts and 2. Private Contracts

Within the teaching field.

Private paid contracts are determined by the Board of Management of the school. They are paid weekly, rolled up holiday pay at Summer and Xmas, no payment for midterm, incremental credit to point 10 but no access to pension of sick pay.

The only guiding Circular is 0024/2015. A Collective Agreement does not cover private contracts.

The Department contract is more favourable in tenure.

He recalled the Complainant commencing at the school in 2016 and he was supportive of her son seeking a place at the school as one of the benefits of her working there. The Complainant was a good teacher, and he was keen to retain her in light of the benefit of her being a native French speaker.

He outlined the road of accessing a CID from a fixed term contract and added that it was not something that one could ask for at the outset. It was the preserve of the Department for which the school had no discretion.

He recounted details of an annualised needs analysis prior to filling temporary positions as discretion was needed in case of re-assignment.

He said that he had been unable to offer the complainant hours as French had dipped in popularity amongst the student choices and the school now hosted just two teachers of the French language and a reduction from 3 French classes in 2020 to 2 classes in 2024.

Mr Z outlined the process surrounding the education posts and information required on subjects.

He submitted that habitually applicants knew to apply for split posts e.g. Irish/ English (2020) as hours could be delegated and reassigned. 50% of applicants may have a single teaching subject. Chemistry could be standalone.

Mr Z recalled that the Union had sought an augmentation of 40 mins during 2022 to enable the complainant to secure a CID, but he just couldn’t do it as there was no scope.

He denied that the complainants nationality had influenced this.

In cross examination, Mr Z confirmed that the school had not offered an education place to the complainant’s son.

Mr Pearson asked where the details of being able to apply for split jobs within an advertisement were displayed? Mr Barry stated that the Board did not define splits. He was unsure of where an advertisement outlined that a candidate could apply if not qualified to teach the whole post.

Mr Z referred to knowledge “in a general way “and they frequently canvass staff to keep an eye on posts.

He outlined that the complainant had only been interviewed for a French teaching position and if she wanted English or special needs she would have to interview for every combination. “We can’t just assign her “He readily accepted that she was registered to teach both French and English.

8 teachers had left in a 3-year period.

Mr Z countered that his door was open following the conversation of May 2023 and he told the complainant that she was welcome to come and see him.

He confirmed that 2022 chronicled the conversation on the “single subject “

Mr Z clarified that the school hosted an equality policy as set down by the Dept and agreed to forward. He outlined that incremental credit is not awarded for service spent in France.

He explained that the school was not participant in a relevant redeployment panel which covered temporary teachers. There was no mis match.

He clarified that he had not retained notes of the May meeting with the complainant.

In closing, Ms Daly argued that the complainant had not satisfied the burden of proof necessary in the case. She had not established that she had been treated less favourably on grounds of her race.

There was no prima facie case of Discrimination, and the Respondent was not fixed with a rebuttal.

Instead, the complainant had relied on an assertion that the school had chosen her colleague, Ms A over her and further asserted that the reference by Mr Z to her having one subject was directed at her nationality and lack of proper standing to teach English.

The school was firm in their stated response that nationality was not a factor in this case.

Ms A had entered the school through private contracts in French and Irish. The Complainant had availed of a job share position, which had been sub divided from elsewhere.

The Complainant had not activated a grievance to resolve her stated issues.

She had not considered the impact of the systems and staff leaver changes at the school, which in turn reflected in the job application scheduler.

The Complainants reliance on the statement by Mr Z that she was at one with a fellow student who taught one subject. The school saw nothing sinister in that statement and contended that the complainant had not applied for or interviewed for English teaching.

Ms Daly added that Ms A was not a direct comparator as she served on a private contract.

The occurrences were not linked to the complainant’s nationality. Discrimination is denied.

Findings and Conclusions:

I have been requested to consider the facts of this case and to decide whether the Complainant has been discriminated against on grounds of race, Section 2(2) (2) h of the Employment Equality Act, 1998 contrary to Section 6(2)(h) and 8 (1) of that Act.

In reaching my decision, I have had regard for the written and oral arguments from both parties in addition to the oral evidence adduced.

Discrimination in Specific Areas

Section 8 of the Employment Equality Act 1998 provides a prohibition on Discrimination.

It is a strict liability.

I have set out the law in that regard.

Section 6 provides:

6.Discrimination for the purposes of this Act (1)

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a)

a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i)

exists,

(ii)

existed but no longer exists,

(iii)

may exist in the future, or

(iv)

is imputed to the person concerned,

8.Discrimination by employers etc.

(1)

In relation to—

(a)

access to employment,

(b)

conditions of employment,

(c)

training or experience for or in relation to employment,

(d)

promotion or re-grading, or

(e)

classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(4)

A person who is an employer shall not, in relation to employees or employment—

(a)

have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b)

otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)

in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, […]

(b)

by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons and classes would be employed are not materially different,

(c)

by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) insofar as such advertisement relates to access to employment.

10.Advertising

(1)

A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—

(a)

indicates an intention to discriminate, or

(b)

might reasonably be understood as indicating such an intention.

The Comparator. Ms A.

The circumstances of this case emerge from an extremely complex employment arena, where qualified teachers experience a period of fluidity prior to being securing permanent appointment.

I have already commended the liberalisations contained in Circular 0024/2015. It is clear to me that an extended apprenticeship of fixed term status forms a corridor of access to an eventual CID.

However, this is a case, where the apprenticeship was interrupted in the complainants’ case in August 2023.

Ms A, the comparator, joined the school on a fixed term contract (full time) privately paid in August 2020. She seems to have responded to an advertisement presented at hearing.

Required subjects were listed as French and Irish.

When the Complainant returned to the school in 2019 academic year, she accessed a private funded contract, which carried an interesting clause

“Subject to agreement between the parties, you may also be requested from time to time to teach other subjects in addition to those set out above “She did take on some special education hours.

The Complainant moved to a department funded contract in 2020 and remained in that zone until her termination date of August 31, 2023. Crucially for the purposes of this case, Ms A remained on the private funded trajectory.

Ms Daly has argued that the complainant has chosen the wrong comparator in this case.

Identification of who is the employer of teachers has captured the attention of the Irish Courts for many years.

O Keeffe v Hickey [2008] IESC 72, vicarious liability for the actions of a teacher by the State in an education setting. tri partite.

Catholic University school v Dooley [2010] IEHC 496, where the High Court found that a privately employed teacher could not use a Dept funded teacher as a true comparator under part term legislation.

Blackrock College v Browne [2013] IEHC 607, Spanish teacher paid privately on 14 hrs, required to work extracurricular hours, Dooley approved.

An Bord Banistíochta, Gaelscoil Moshíolog v the Labour Court and O Súird and the Dept of Education [2024] IESC 38. Board of Management run by Volunteers not a Commercial management unit

I accept that both the complainant and her chosen comparator are employed by the same employer, albeit that the Dept of Education determines pay. O Sullivan v Dept of Education at EAT [1998] ELR 217

The Complainant exhibited her contracts as private funded and job sharer; both reflect the respondent as the employer. During the cognisable period for this claim, the Complainant was on a Dept contract and Ms A on a private funded contract, the converse of the circumstances of Dooley.

This claim comes to me under the Employment Equality Act 1998, where I am investigating whether the complainant has been discriminated against on grounds of her French nationality.

(a)

It is settled law that a complainant is entitled to select her own comparator, NUI, Cork and Ahern and ors [2005] SC IE40(Equal Pay) and Minister for Finance v Una Mc Ardle [2007] IEHC 98, permitted to use an established civil servant as comparator.

The Complainant has a different nationality to Ms A, who is Irish.

I accept that she is a legitimate comparator for the purposes of the Act.

Statutory Time limits:

As the Respondent opened a Preliminary argument on statutory time limits, I am bound to commence on that topic.

I have not progressed on the Respondents contention on the absence of a written submission from the complainant as Mr Pearson closed that gap by forwarding submissions in support of the complainant.

However, I must now engage on the Respondent contention that the complainant has not pointed to a discriminatory act within the cognisable period for the claim i.e 24 August 2023 to 23 February 2024.

Section 77(5)

(a)

Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b)

On application by a complainant the [Director General] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

Preliminary Issue

The Complainant has requested an application for an extension of time if deemed necessary to 12 months, which is from 24 February 2023 to 23 February 2024, when the claim was submitted to the WRC.

I must explore the circumstances of this case in the face of the alleged contraventions on the overarching time span.

The Complainant is a French national, resident in Ireland since 1998. She is a registered teacher in French and English. This distinguishes her from the facts in Foley v The Teaching Council, where a conditional registration was found to be a lawful exemption under Section 36(5) of the Act.

She has participated in fixed term employment since 2016 on a myriad of fixed term contracts in different schools. For me she has demonstrated a knowledge of the challenging world of fixed term employment as a teacher.

It was the complainant who brought my attention to the Circular 0024/2015, Implementation of the expert group on fixed term and part time employment in primary and second level education.

The Complainant was both a fixed term and part time worker for the purposes of this case and that Circular.

The contract signed by her on 6 September 2022 is subject “to collective agreements arrived at from time to time between the teacher unions, managerial authorities of schools and the Minister for Education and Skills “.

On reading the Circular, a collective Agreement, I was encouraged by the apparent liberalism in an acceleration towards securing a CID in education which exceeded the statutory route permitted in law. It is an inclusive document which recognises private funded contracts. This was the avenue of CID actively pursued by the complainant during this case.

However, the complainant did not launch to permanency in early 2023 as her circumstances of being a Job-sharing post were judged to veer outside the parameters of the Circular. She was informed of this on 3 February 2023.

I listened as I learned that surplus hours which arise from a job share being granted to a teacher do not necessarily have to be a perfect match to the post holder, but instead, the hours enter an administrative pool for allocation by the Board of Management.

I accept the Complainant evidence that her awareness of this practice unfolded at hearing in this case.

There is an exclusionary clause at Part B on sanctioning a CID based on revised terms and conditions.

“Unless she is excluded by reason of the following:

(iv) she is covering for another teacher absent on an approved scheme of leave other than covering for a teacher absent on career break or secondment and this was set out as an objective ground in writing in the previous contract “

There had been earlier interventions by her Union to secure some currency of hours which might assist the quest for security in permanent appointment. These occurred in 2022 and captured the reference to the complainant having “just one subject “.

I found some ambiguity in how the clause surrounding the exclusion was drafted and this goes some way to explaining just how the complainant, on the premium contract, felt she had been left behind in this case and even why she contended that she had been overtaken by Ms A, who served on the inferior privately funded contract. The word job share is not delineated in the Circular as an exclusionary clause. For me, this amounts to an administrative omission.

This Circular is now 10 years old and may well benefit from review or audit in Part A (3)

“And those hours are not confined to hours reckoned under (1) or (2) above “

I have been requested to extend time under reasonable cause, if deemed needed, by Mr Pearson.

I have not established circumstances to extend time in this case as I find that during quarter 1, 2 and 3 of 2023, the complainant was actively pursuing a contract of indefinite duration rather than a cause of action for discrimination on grounds of her nationality.

The Complainant and her Union progressed an appeal under the Circular 004/2015, which does not carry a dimension on discrimination, but rather a localised collective agreement on an accelerated route to permanency to CID.

The Dept letter of 3 February 2023 suggests that the Board of Management carried a discretion to issue a CID, and this was not visibly scoped out by the Complainant or her Union.

I note that Mr AB indicated in early May that he had set out a possible route to WRC at that time and this was something the complainant said she did not wish to take up.

While I appreciate that she may not have picked up on Mr Zs “come see me “from May 29, 2023, the same clause was incorporated in Mr Zs letter of 16 May, which she acknowledged reading.

“I am happy to outline the situation to the complainant in person “

The Complainant did not engage at this point.

We will never know if that invitation could have given rise to a plan B for the parties.

I fully appreciate that the Complainant is disappointed by the delay in bringing this case to the WRC.

However, I do not accept her clear vacuum of local grievance as a first course of action.

“As it was not presented to me “

I contend this was self-limiting and a missed opportunity and cannot to taken to excuse the delay in making a complaint to the WRC.

By then, I accept that the complainant had continuous paid state funded service from September 2020 (three years) and two academic years of 9 paid months from 2019 of private funded work.

The circumstances are not comparable to Campbell Catering ltd and Rasaq [2004] ELR 310 or Ntoko relied on by the Complainant.

I cannot accept the complainant’s contention that she received precarious contracts as they carried 52 payment and pension as opposed to the frailer privately funded pension. I appreciate they were part time tenure.

I asked the Parties whether the topic of associated employer was considered in this case?

Employers are deemed to be associated if—

(a) one is a body corporate of which the other (whether directly or indirectly) has control, or

(b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

Neither party had.

I have found that the complainant was represented by her Union to April 2024 and by Mr AB during May 2024. I have read her petitions to Mr AB during the cognisable period for the claim.

The Complainant did not apply for positions during the cognisable period for the claim.

However, I have not found grounds to extend the equitable remedy for an extension of time in accordance with Section 77(5) b on this occasion.

Many of the conversations which planted seeds of doubt and displacement preceded the cognisable period.

The Complainant has explained her delay in submitting her claim to the WRC, but I find that she has not excused it on this occasion. Cementation Skanska.

I am strengthened in my views as many of the claims that the complainant has relied on regarding a usurpation of hours by Ms A predated the 24 February 2023 i.e the reversal of the offer of 7 hrs and the comments regarding having one subject.

Findings on the substantive case:

The Race Directive 2000/43 of June 2000 has at its centre tenet at Recital 8, the implementation of equal treatment and the fostering of conditions for a socially inclusive labour market.

Section 85A, the burden of proof, Employment Equality Act, 1998 provides that where facts are established by a complainant from where it may be inferred that discrimination has occurred, it falls to the respondent to rebut that inference. Cork City Council v Mc Carthy at the Labour Court EDA 082, 2008. Dr Teresa Mitchel v Southern Health Board [2001] ELR 201 determines these need to be facts of “sufficient significance”.

I will now focus on the cognisable period allowed me by law that of 24 August 2024 to 23 February 2024, as at the heart of this case is the complainants own contention that her being French was an issue for her employer and the reason, she was not offered a successive fixed term contract on 1 September 2023. She has shared a very strong view that Ms A has displaced her at the school.

On reviewing the evidence, I found that the complainant came to the case as a well-regarded teacher by the respondent. She carries a high level of skill , experience and performance .

At the root of this case was the complainants concerns regarding losing hours to a junior colleague who had a different nationality . Ms A is an Irish national, who worked the private contract.

I found the complainant listed as subject Co-Ordinator for French at the school and she gave an animated account of having had the autonomy to run extracurricular activities involving the students and France, which she enjoyed. The Complainant also spoke freely of a trip Ms A organised to French Disneyland.

She confirmed to Ms Daly that she had not been subject of racial comments or slurs. Mr Z demonstrated a pride that the complainant was an asset as a native speaker.

This stands separate to the facts in A Complainant v a Health Board at the Equality Tribunal DEC -E 2004-10 where the complainant was exposed to constant references to differences in culture which amounted to a finding of Discrimination.

The Complainant has taken issue that she was not considered for re-appointment for the academic year 2023 and was overtaken by Ms A as she continued in her French and Irish role. I will return to this in my summary.

On consideration of the evidence, I found quite a rocky road for newly appointed teachers at the school through both the privately funded and state funded fixed term posts. I can see that the Circular, which amounts to a Collective Agreement, relied on by the Complainant carries a liberalised pathway running in parallel to the statutory framework aimed at permanency and then further flexibility in CID through cross site redeployment. However, the starting position for this flexibility is a CID.

This is what eluded the complainant in this case and continues to elude her.

I found that the complainant had a full knowledge and appreciation of both types of contracts as she had walked in the shoes of both since 2016. Her bid to translate her tenure to CID was thwarted by her unexpected declaration of ineligibility as she was walking in the shoes of a job share surplus contract.

I requested sight of the advertisement of the French and Irish post in 2020 to which Ms A was appointed.

It was full time at 22 hrs, fixed term and privately paid by the school.

I am struck by the complainant’s evidence that she did not have a working knowledge of just how the surplus hours from allocation of job sharing are carved out via a pool.

She had no idea that she could apply for a subject listed on advertisement rather than both. However, her contracts suggested that on agreement, she could be asked to teach her second subject.

I cannot attribute that lack of knowledge to her Nationality as by August 2023, she had a formidable level of experience in the education setting, and she had not replied to any of the advertisements at the school in August 2023.

I found the circumstances presented by the complainant to be very regrettable in this case as she truly believed that she was on the cusp of permanency in early 2023. I accept that she did all in her power to obtain a CID, but was defeated by the Circular referred to above rather than by Ms A, per se. She carried enormous currency of fixed term service.

I found that to be unfair

However, I cannot recognise this as an action by the Respondent directed towards her due to her nationality as it clearly falls outside the cognisable period.

I would like to remark that I have found that during that crucial week in August 2023, it was open to the parties to make protected time to reflect on the cessation of her tenure on or before August 31, 2023. Perhaps there may have been grounds for severance, but these were not explored.

I have repeated on a number of occasions; I was unhappy with the lack of records maintained by the school.

It was also open to the Parties to press on in relation to seeking a CID much earlier through the ambiguous messages in the February 3, 2023, correspondence.

I must conclude that while I fully understand that the complainant argument that she was eclipsed in her role of teaching French and special education at the Respondent school by 31 August 2023.

I have not found facts of sufficient significance based on the balance of probabilities that the complainant was discriminated against on grounds of her French nationality.

What occurred arose from a regrettable fluidity and uncertainty in the operation of fixed term contracts at the school and the choices both the complainant and Ms A made in the face of that fluidity.

The situation was not aided by the lack of a framework of documents dedicated to employment equality and consequent processes to follow.

I am mindful of the CJEU case C-245/17, which addressed an expectation for retention of employment at the end of the teaching period defeated by “necessity and urgency “in a fixed term work setting.

C-245/17 - Viejobueno Ibánez and de la Vara González

On those grounds, the Court (First Chamber) hereby rules:

Clause 4(1) of the Framework Agreement on fixed-term work, concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not precluding national legislation which allows an employer to terminate, at the end of the teaching period, the employment relationship of fixed-term teachers recruited as interim civil servants for one academic year, on the ground that the conditions of necessity and urgency attached to their recruitment have ceased to apply on that date, whereas the employment relationship of indefinite duration of teachers who are established civil servants is maintained.
Article 7(2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation which allows termination, at the end of the teaching period, of the fixed-term employment relationship of teachers recruited for one academic year as interim civil servants, even if this deprives those teachers of days of paid annual leave which correspond to that academic year, provided that such teachers receive an allowance on that account.

Having considered all the facts raised, I find that the complainant has not established primary facts of sufficient significance to raise an inference of Discrimination on grounds of her French nationality within the cognisable period in this case.

I am left to reflect on the complainant’s unfortunate exclusion from the terms of the presiding Circular in this case, which was not related to her nationality but an Industrial Relations Agreement of 10 years standing which did not convey a launch pad for a CID from fixed term job sharing hours.

I am not required to shift the burden to the respondent to prove the absence of Discrimination.

I must find the claim is not well founded.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have made recommendations to the school on provision of Employment Equality policies and training.

There is no prima facie case of Discrimination on grounds of nationality contrary to Section 6(2)(h) and Section 8 (1) of the Act.

The Complainant was not dismissed due to her nationality.

I find the complaint is not well founded.

Dated: 23rd July 2025.

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Discrimination on grounds of Race. Statutory time limits.