Board of Management St Flannan's College (Represented by Mr Liam Riordan, Mason Hayes & Curran Solicitors) v Maureen O'Shea (Represented by Tadhg O'Shea)

 
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Labour Court (Ireland)

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ADE/17/31

DETERMINATION NO.EDA185

ADJ-00004191 CA-00005827-001

PARTIES:
Board of Management St Flannan's College (Represented by Mr Liam Riordan, Mason Hayes & Curran Solicitors)
and
Maureen O'Shea (Represented by Tadhg O'Shea)
SUBJECT:
1

1. Appeal of Adjudication Officer's Decision No: ADJ-00004191.

BACKGROUND:
2

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 16 November 2017. The following is the Determination of the Court:

DETERMINATION:
Background
3

This matter comes before the Court as an appeal by Ms Maureen O'Shea (the Appellant) of an Adjudication Officer's decision made in respect of her complaint under the Employment Equality Act, 1998 – 2015 that her employer, St. Flannan's College (the Respondent) had discriminated against her on grounds of gender contrary to the Act at Section 8.

4

The Adjudication Officer, in a decision dated 7 th March 2017, did not uphold the complaint of the Appellant.

The Case
5

The Appellant was a teacher holding a Special Duties post of responsibility in the Respondent school. Special Duties posts of responsibility are assigned to a range of different responsibilities in the school. Some holders of Special Duties posts of responsibility are assigned to the duty of year head. The Appellant in this case was not assigned to the duty of year head.

6

In February 2016 a competition was held to appoint an Assistant Principal who would be assigned the duty of year head. Year head functions in the school were carried out both by Assistant Principals and by teachers holding Special Duties posts of responsibility.

7

The competition in February 2016 involved the interviewing of 10 applicants, seven of whom were women and three of whom were men. Two of the female candidates were year heads and three of the male candidates were year heads.

Position of the Respondent
8

The Respondent submitted that the complaint before the Court related only to the events associated with the interviews held in February 2016 as part of a competition to fill an Assistant Principal post.

9

The Respondent clarified to the Court that in this case the competition related to the appointment of an Assistant Principal to carry out the specific duties of year head. The Respondent further clarified that historically the function of year head had been carried out by teachers at Assistant Principal level and at the level of a teacher holding a Special Duties post of responsibility. The Respondent also clarified to the Court that appointments to the position of Assistant Principal year head had historically been made on the basis of seniority and that such a system no longer applied in 2016. Consequently, all such posts required to be filled by competition in accordance with relevant circulars of the Department of Education and Science.

10

The Respondent submitted that the Board of Management of the Respondent met in January 2016 and decided that a vacant position at Assistant Principal level should be allocated to the duties of year head. The Board instructed the Principal to proceed to advertise the post. The Respondent submitted that in accordance with relevant procedures and circulars the selection board met in advance of the interview process and agreed questions to be asked at the interview, the order of questioning and the application of the marking scheme in accordance with the agreed criteria. The Respondent submitted that interviews took place in February 2016 and a candidate was subsequently recommended for appointment. The Respondent submitted that, in compliance with the provisions of the ‘ Appeal Procedures for the appointment of Assistant Principals and Special Duties teachers of the Department of Education’ dated 18 th March 2015, the Appellant filed an appeal against the appointment of the recommended candidate. The grounds of appeal related to an alleged breach of the appointments procedure. Alleged discrimination on grounds of gender was not a ground of appeal in this process.

11

The Respondent submitted that in a decision of 12 th April 2016 the Appeal Board upheld the appeal and recommended that all candidates be re-interviewed. The Respondent submitted that no candidate was appointed as a result of the interview process which is the subject of the within appeal. The Respondent submitted that in the absence of any appointment being made as a result of the impugned interview process, it is difficult to see how the Appellant was treated less favourably than any relevant comparator on the gender ground.

12

The Respondent submitted that a second interview process was conducted in May 2016 and an Appointment was made to the position of Assistant Principal. The Respondent submitted that no appeal is before the Court as regards the conduct of the second interview process.

13

The Respondent submitted that ten candidates were called for interview in February 2016. Of those candidates seven were female and three were male. Of the female candidates four were existing Special Duties post of responsibility holders, two of whom were assigned duties as year head. Of the male candidates three were Special Duties post of responsibility holders and were assigned to year head duties. One of the male candidates was voluntarily acting as a year head in the repeat year cycle.

14

The Respondent submitted that the Appellant had contended that she was excluded from year head training which was conducted prior to the February 2016 interview process. The Respondent submitted that the training in question was provided by the national management body for voluntary secondary schools, the Joint Managerial Body (JMB), and was confined to those assigned to the duties of year head. The Respondent submitted that the Appellant's ineligibility to attend this training was completely outside the control of the Respondent.

15

The Respondent submitted that at no time prior to the interview process in February 2016 did the Appellant formally or informally request a review of her post of responsibility duties. The Respondent submitted that a male holder of a post of responsibility had requested such a review in 2013 and, in compliance with agreed procedures, that teacher was assigned duties as year head as a holder of a post of responsibility. The Respondent submitted that the teacher in question was not a candidate at the interview process in February 2016.

16

The Respondent submitted that the person holding the post of Year Head on a voluntary basis was not advantaged in comparison to the Appellant and although he was a candidate in the impugned interview process he was an unsuccessful candidate for the appointment to the post of Assistant Principal.

17

The Respondent submitted that no ‘golden...

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