Case Number: DEC-E2016-043. Workplace Relations Commission

CourtWorkplace Relations Commission
Docket NumberDEC-E2016-043
Date09 March 2016
PartiesMs C -V- Board of Management of School A
EMPLOYMENT EQUALITY ACTS DECISION NO: DEC-E2016-043 Ms C (Represented by the Irish National Teachers Organisation) And Board of Management of School A (Represented by Ms Ita mac Gruairc B.L, instructed by Mr Diarmuid O Cathain, solicitors) File No: EE/2013/583 Date of Issue: 9th March 2016 1.The Dispute

1.1 The dispute concerns a claim by Ms C that the Board of Management of School A discriminated against her on the grounds of disability in relation to accessing a job and promotion contrary to Section 6(2)(g) and Section 8.1 of the Employment Equality Acts 1998 to 2011.

1.2 The Complainant referred her complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 4 Nov 2013.A submission was received from the complainant on 17 April, 2014. A submission was received from the respondent on 4 June 2014. On 7 September 2015, in accordance with his powers Sec 75 of the Acts, the Director delegated the case to me, Patsy Doyle, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under part VII of the Acts. On this date, my investigation commenced. As required under S79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 25 September 2015 and reconvened on 6 November 2015. Supplementary information was sought from both parties which was submitted and commented upon promptly.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

2 Summary of the Complainant’s Submission

2.1 The complainant is a qualified Primary School teacher. In 1981, she commenced working at the Respondent Deis school and worked in a myriad of roles culminating in being appointed Deputy Principal in 2008. This was a combined teaching and administrative role. She served for a period as acting Principal in 2011/2012. During this time, she steered the school through a difficult school inspection and let it be known that she was interested in Principal positions someday. She was extremely involved in the “ DEIS” model of education and in Church Music at the school. The complainant described a good working relationship with the Chairman of the Board of Management, Fr A. She had a recall of applying for other Principal positions and being discouraged by the Chairman of the Board as the school did not want to lose her. At the time referred to in the complaint, the complainant was fulfilling the role of Deputy Principal. She had a clear understanding that in the event that the Principal position were to become vacant at the school, she would stand a good chance of succeeding at interview given her positive track record at the school.

2.2 The complainant suffered from Ulcerative Colitis which caused her to have a period of absence on sick leave from the school in 2012. Prior to this she had made low grade adaptations at the school to accommodate her condition. With the assistance of the caretaker, she converted a toilet attached to her classroom as well as always sitting adjacent to the door at meetings. The complainant gave evidence that she was extremely ill in late 2012 and at one point was placed on a colon removal list. She made application to the school for retirement on the grounds of ill health.

On 11 January 2013, the complainant attended an Occupational Health appointment. She was deemed “not currently medically fit to work “and was to be reviewed in 3 months. Shortly after this in April 2013, the complainant was commenced on a new medication which managed her condition and from which she saw a marked improvement. She withdrew her application for retirement on the grounds of ill health. The complainant returned for Occupational Health review on 7th May 2013 and was cleared for returned to work on May 15th 2013. An extract from the medical report submitted states:

“No accommodation in her workplace or restriction of her duties is necessary at this stage. Future difficulties or flare up of her condition can unfortunately not be ruled out but this should not bar her return to work at the moment “

2.3 The Complainant returned to work on 15 May 2013 and immediately felt distanced by the Chair of the Board of Management. She had heard that the Principal was retiring and submitted an application for the position of Principal. The Complainant gave evidence that the retiring Principal was surprised at her application and asked her whether she was sure she wanted to apply for the position with her health history? In addition Fr A, Chair of Board of Management did not mention the position of Principal to her and it was her understanding that he was approaching other candidates to apply as she observed him in consultation and collaboration with the eventually successful candidate on a number of occasions before the interview. This was in marked contrast to his previous contact with her, prior to her sick leave where she understood from him that she would stand a very good chance if the position of Principal of the school ever came up.

2.4 The complainant received a copy of the agreed criteria for discussion at interview in advance and presented for interview on June 21 2013.The Criteria for Selection was based on

· Familiarity with current educational issues.

· Knowledge of Deis.

· Vision and Leadership.

· Catholic Ethos and Pastoral care.

· Performance at Interview and qualifications.

It was the complainant’s evidence that she was not questioned on 3/5 topics and was shocked on receipt of her markings that she had been marked down on these topics. These topics were

· DEIS

· Catholic Ethos

· Knowledge of current education.

She was also taken aback at the continued distance from the Chairman of the Interview Board, Fr A, who was also the Chairman of the Board of Management.

2.5 The Complainant attended a gathering of teachers later that evening and learned informally that interviews had been of varying lengths. Of three teachers interviewed internal to the school. The times were stated as.

1 1hr 10 mins (Eventual successful candidate)

2 50 mins (Another internal candidate)

3 The Complainant 45 mins.

2.6 On June 25th, the Complainant was informed by the Chairperson of the Board that she had been unsuccessful at interview. The complainant was particularly distressed and became further distressed at the manner in which the announcement of the successful candidate was subsequently communicated to the staff in the presence of outside delivery staff at a staff meeting half an hour later. The successful candidate had less experience than her. The complainant described being “heartbroken” but felt unsupported at the school with the exception of one member of the Board. She sought the notes and marks covering the interview.

2.7 In early July, prior to the breakup of school year, two teacher colleagues, (Ms A and B) informed Ms C that they had been to visit the Chairman of the Board Fr A at his home to express their concern directly to him at Ms C’s unsuccessful application for Principal. Ms C did not have prior knowledge of the visit. The discussions at Fr As’ house lasted an 1hr. Ms C told the Tribunal that both teachers came back to her reporting that Fr A had remarked “that it was a pity she was out” in response to a question from Ms A, which they interpreted as a reference to Ms C’s sick leave and disability. There were further discussions that Fr A had not been keen when Ms C applied for other Principal ships as she would be such a loss to their school. Ms C was very shocked at this development and approached her Union for advice. In September, 2013, the complainant met one of the interview board at a social gathering and he was keen that the complainant did not hold his decision in the interview against him.

2.8 The complainant received her score sheet and some notes from the interviewers. Only two of the external interviewer assessors took notes. At this stage, Ms C had formed the view that she had been unfavourably treated by the Board of Management in relation to her interview. She contended that it was “tainted with discrimination “citing that her sick leave through disability had coloured the view of the Chairperson of the Interview Board, Fr A. And that his remarks in particular were attributed to her disability and a contributory factor in not getting the job.

Furthermore, she held the view that the successful candidate was less qualified, had less leadership experience and the whole interview process lacked consistency in question formulation to candidates, duration of interviews or as a real attempt to capture teaching experience. She was also troubled by the lack of transparency in relation to note taking. On November 6 2013, the complainant lodged an EE2 form (S.76, right to information) on the respondent contending that she had been discriminated against on disability grounds. The papers were served on the Chairperson of the Board and sought:

· Copy of marking sheet for successful candidate

· Notes taken during the interview of the successful candidate

· Record of experience of successful candidate

· A full list of questions at interview

· Board of Management minutes in relation to the appointments process

· All other relevant material.

2.9 The respondent replied on the requisite EE3 form on 24th January 2014

· Discrimination was denied

· The complainant’s non appointment was due solely to not being the most suitable candidate.

The first three requests were declined on confidentiality grounds

· The remainder were declined by citing that the matter was not properly before the Equality Tribunal and the allegation lacked specificity.

2.10 The Complainant was unhappy with this approach and advanced her compliant to the Tribunal in April, 2014. At the time of the hearings the complainant had been on medically advised sick leave since December...

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