Case Number: EDA1515. Labour Court
| Judgment Date | 01 October 2015 |
| Year | 2015 |
| Docket Number | EDA1515 |
| Court | Labour Court (Ireland) |
|
FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A NATIONAL SCHOOL
(REPRESENTED BY MASON HAYES & CURRAN SOLICITORS) - AND - WORKER (REPRESENTED BY HAYES SOLICITORS INSTRUCTED BY INTO) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 6th February, 2015. A Labour Court hearing took place on the 24th and 29th June, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by A National School (The Respondent) against the decision of the Equality Tribunal in which it held that the School discriminated against a Teacher in the School,(The Complainant) in relation to access to promotion on the grounds of age, religion and sexual orientation contrary to Section 6(2) (d),(e) and (f) of the Employment Equality Acts 1998 to 2011 (the Act).
The Equality Tribunal issued its decision to the parties on 30 December 2014. In that decision the Equality Tribunal found that the Complainant had been discriminated against on the grounds of her religion, sexual orientation and age. The Tribunal awarded the Complainant compensation in the amount of €54,000.
The Respondent appealed the decision to the Labour Court on 6 February 2015. The matter came before the Court on Wednesday 24 June and again on Monday 29 June 2015. The Court subsequently sought submissions from both parties regarding the significance and relevance of Section 37 of the Act to the matters before it. Those submissions were received in Mid July 2015.
For ease of reference the parties are referred to in this Determination as they were at first instance. Accordingly, the National School is referred to as the Respondent and the Teacher as the Complainant.
Background
The Complainant is employed as the Deputy Principal in the respondent two teacher school. In 2011 the post of Principal fell vacant and was duly advertised. The Complainant applied for the post. She was called to attend for an interview for the position.
The manner in which the competition had been organised was disputed by the Complainant as not being in accordance with the rules laid down by the Department of Education. Those rules are set out in a Departmental document entitled “Boards of Management of National Schools – Constitution of Boards and Rules and Procedures” As a consequence that competition was abandoned, the vacant position was re-advertised and the Complainant re- applied for the post.
In total two candidates applied for the post and both were called for interview. The Complainant was not successful in the competition.
The Complainant subsequently objected to the composition of the Selection Panel, the manner in which it conducted the interview and the manner in which it made its decision. After some correspondence between her trade union, the INTO, and the school patron she submitted a complaint to the Equality Tribunal in which she claimed that her qualifications and experience were superior to those of the successful candidate and that she was asked discriminatory questions regarding religion and sexual orientation in the course of her interview.
The Respondent submits that the Selection Panel was properly constituted. The Chairman of the Board of Management of the School was not in a position to sit on the Selection Panel as he was supporting a terminally ill member of his family. Instead he appointed the person he considered his deputy to chair the Selection Panel. The Respondent maintains that there was no breach of procedure in this case and if the Court finds there was it was minor in nature and of no consequence for the purposes of this Act.
The Respondent denies that discrimination of any nature took place. It maintains that the Selection Panel appointed to carry out the interviews consisted of three experienced people who conducted the interview process fairly and honestly and selected the person whom it considered the best candidate for the position.
Position of the Parties
The Complainant
The Complainant contends that she was better qualified than the successful candidate and had significantly more teaching experience than her. The Complainant is older by some 10 years than the successful candidate.
The Complainant contends that in the course of her interview for the post at issue her views on matters relating to religious patronage and pluralism in the school were canvassed. She further contends that she was asked a question which was directed at adducing her view on the employment of homosexual teachers.
In reliance on these facts the Complainant contends that the competition was tainted with discrimination on grounds of age, religion and sexual orientation.
Oral evidence was given by the Complainant, which can be summarised as follows:
The Complainant told the Court that she qualified as a Primary Teacher in 1987. From 1990 to 2000 she lived in the USA where she worked in the Technology Industry, completed a Master’s Degree and further expanded her skills as a Teaching Assistant in Boston College. On her return to Ireland in 2000 she took up a lecturing position in UCC before returning to Primary Teaching in 2002. She has been employed by the Respondent’s two Teacher School since 2003 in the role of Deputy Principal.
The Complainant told the Court that in her role she has deputised for the Principal which requires her to handle difficult situations including representing the school in courts cases. She has a number of staff reporting to her in the absence of the Principal and she has responsibility for all computer and website work in the school.
In relation to the marks allocated at interview she said that she found it remarkable that she never scored higher than the successful candidate under any heading despite the fact that she had twelve years teaching experience at the time of the interview compared to the successful candidate who had four years. She said that under each of the nine interview assessment criteria required to be completed by all members of the Selection Panel the successful candidate got marks greater than or equal to her. The successful candidate she said was ten years younger than her and had not held a post of responsibility in her previous school.
The Complainant told the Court that in advance of the interviews taking place the issue of religion in schools was a hot topic. She said she found it unsettling and uncomfortable when asked about her views on the INTO Submission to the Forum on Patronage and Pluralism and its thoughts on religion. She said she did not know why she was being asked the question and she did not know how to answer it. She stated that she had read the INTO Submission and also the submission of the Irish Human Rights Commission. She viewed her personal religious beliefs as private and responded to the question by saying the school was already accommodating children of different faiths and none. Under cross examination the Complainant said that the words ‘Catholic Ethos’ were never mentioned at interview.
The Complainant said she was ‘floored’ when asked the question ‘What about the homos’ She stated that she did not know how she was supposed to answer it. She thought the question was about homosexual teachers not children and said in reply ‘they’re already there’.
The Complainant told the Court that she found the questions regarding her views on the INTO Submission and on homosexuality totally unacceptable, discriminatory and believed that they placed her at a great disadvantage. On her way home after the interview she said she spoke to a friend/colleague and told her about the questions she was asked. She also told her husband and contacted the INTO the following day.
The Respondent
The Respondent denied that the Complainant was discriminated against in the manner alleged or at all. It was the Respondent case that the competition was conducted fairly and in accordance with regulations made by the Department of Education and Skills. The Respondent’s position is that the selection of the successful candidate was based entirely on merit.
The Respondent pointed out that the school is a Catholic school under the patronage of a Catholic Archbishop and that the maintenance of the religious ethos of the school was a matter of legitimate interest in the filling of the post in issue. It is denied, however, that considerations relating to religion played any part in the decision to prefer the successful candidate over the Complainant.
The Respondent denied that the views of candidates on homosexuality were canvassed or that any question that could be construed as referring to that topic was put to the Complainant in the course of her interview or otherwise.
According to the Respondent the only mandatory qualification required for the disputed post was that candidates be qualified as a primary teacher.
The Respondent contends that the Complainant has failed to ground her claims of discrimination in so far as they related to religion and sexual orientation by reference to a valid comparator and on that account those claims cannot succeed.
Oral evidence was given on behalf of the Respondent by Mr H, who was Deputy Chairperson of the Respondent’s Board of Management and a member of the Selection Panel, Sr C, who is a retired primary teacher and who was a member of the Selection Panel and by Mr C, a teacher at second level who was also a member of the Selection Panel.
The evidence tendered by these witnesses can be summarised as follows:
Mr H’s Evidence
Mr H Deputy Chairperson of the Board of Management chaired the Interview Selection Panel. In evidence he told the court that he did not know the other Panel members in advance of the interviews. The rules regarding the conducting of interviews are set...
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