Lynskey v Board of Management of Coolmine Community School
OFFICE OF THE DIRECTOR OF EQUALITY INVESTIGATIONS
File reference: EE/33/99
EMPLOYMENT EQUALITY ACT, 1977
Employment law - Equality – Discrimination – School appointment – Selection of candidates – Whether female candidates favored over male – Whether selection committee acted fairly to all candidates
The claimant alleged that he was discriminated against by the Board of Management of Coolmine Community School on the ground of .The claimant alleged that his qualifications, experience and service rendered him a more suitable candidate than the female appointee, but that there was a climate of opinion in the school favouring a female candidate for the position. The respondent said there were nine applicants for the post, five males and four females. The respondent outlined the Board of Management’s criteria for selection of the candidates which involved a Selection Committee for scrutiny and short listing. The claimant did not finish in the top three places, having been placed seventh out of eight candidates. The respondent stated that the Selection Committee had the discretion to decide on the most suitable candidate, and it denied the allegation that the Committee did not apply a reasonable and fair manner of selection.
Held by the Equality Officer in reviewing the applicable law and citing with approval Dublin Institute of Technology and a Worker (DEE994) stated that it was not the Tribunal’s function to determine who was the most suitable candidate for the post but to determine whether the sex or marital status of the complainant, or the appointee, influenced the decision of the board. In so doing the tribunal determined the claimant was discriminated against on the ground of gender in terms of section 2 (a) of the Employment Equality Act, 1977 and contrary to section 3 of that Act in the manner in which it dealt with the promotional competition for the post of Deputy Principal and awarded him EUR5,000 compensation.
1 This dispute concerns a claim by Mr Eamonn Lynskey that he was discriminated against by the Board of Management of Coolmine Community School on the ground of gender - contrary to the provisions of section 3 of the Employment Equality Act, 1977, in terms of section 2 of that Act - when he was denied promotion to the position of Special Deputy Principal (Academic). The claimant alleged that his qualifications, experience and service rendered him a more suitable candidate than the female appointee, but that there was a climate of opinion in the school favouring a female candidate for the position.
1.2 On behalf of the claimant, the Equality Authority referred a claim under section 19 of the Employment Equality Act, 1977 to the Labour Court in November 1999. The Labour Court referred the matter for investigation and recommendation by an Equality Officer on 16 December 1999. Submissions were sought from both parties and a joint hearing was held in November 2000. Further correspondence with the parties ensued, and a second hearing was held in March 2001. Subsequent correspondence with the parties to the dispute was finally completed in February 2002.
2.1 The claimant was employed as a teacher at Coolmine Community School, with responsibility to teach English and Italian to State examination level. He had twenty-five years’ teaching experience, and had taught in Coolmine Community School since 1977. Since 1990, he held an “A” Post as an Assistant Principal for Community and Adult Education Programmes, acting as Director of the night school. In May 1995, a newly created post of Special Deputy Principal (Academic) was advertised. At that time, the Principal and Deputy Principal were both males, and the claimant alleged that he did not apply for the new post because of a climate of opinion within the school that a female would be appointed. In the event, a female candidate was successful.
2.2 When the post was re-advertised in 1999, the claimant said that the Principal and Deputy Principal posts were again filled by men, and that the climate of opinion favouring a female appointee was even stronger than in 1995. Nevertheless, he applied for the post - one of seven candidates for interview - and a female candidate was again successful. The claimant says that a number of his colleagues agreed with his contention that a female candidate would have been successful irrespective of the qualifications, experience or service of the male candidates, and he provided supporting statements from three of them. Two of these colleagues also gave evidence at the first hearing.
2.3 The recruitment advertisement stipulated that a candidate must provide the names of two referees, who would be contacted directly by the school Principal. It was made clear that references would not be provided by the Principal or Deputy Principal, and the claimant accordingly sought referees from outside the school. He stated that this appeared to have placed him at a disadvantage, given the “in-house” nature of the questionnaire to be completed by the nominated referee. He
considered one of the female appointee’s references, from a former chaplain of the school, to be poorly completed. He expressed astonishment that her second reference, from a teacher in the school who did not hold a post of responsibility, was acceptable. He concluded that her references show her candidature to have been inferior to his and made it clear that her appointment must have been as a result of a desire to appoint a female.
2.4 On the morning before the interview, the claimant was told by the Principal that one of his references had not been received and that he should remind the referee. The claimant informed the Principal in writing that in supplying the names of the referees he had fulfilled the application requirements and that it was a matter for the Principal to ensure the references were received. The Principal disagreed. The second reference was not received in time due to a postal error. The claimant asserted that this treatment was corroborative of the climate of opinion in favour of a female appointment, and he said it was a further indication to him that his candidature was not being taken seriously.
2.5 With regard to the interview itself, the claimant did not allege that the questions asked were discriminatory in content. However, he believed that the period of twenty minutes given for the interview was not sufficient, that the questions were therefore limited and that he was not given enough opportunity to discuss his suitability for the position in terms of qualifications and experience. Furthermore, of the five members of the Selection Committee, only two were actually members of the Board of Management who might have had sufficient knowledge of the school.
2.6 The claimant argued that his formal qualifications, his wider range of experience and his longer service rendered him a more suitable candidate than the female appointee. He alleged that the female appointee had sixteen years’ experience as a teacher and four years’ experience as an administrator, compared with his twenty-five years’ experience as a teacher and sixteen years’ experience as an administrator.
2.7 The claimant submitted that he was more qualified than the female appointee to be promoted to the post of Special Deputy Principal (Academic). The following is a list of his qualifications and teaching experience:
1. BA (1973) and Higher Diploma in Education (1974) - UCD (NUI)
Although he could not vouch for the absolute accuracy of his information, the claimant believed that the female appointee held the following qualifications and experience:
2.8 The Equality Authority, on behalf of the claimant, submitted that the facts of this case raise an inference of discrimination and that in order to rebut any presumption of discrimination the employer must show the more favourable treatment of the female teacher in question was based on non-discriminatory grounds. The Authority cited in support of its contention the cases of Culloo v Model School Limerick (EE/8/1987), Wallace v South Eastern Education and Library Board ( 1980, IRLR 193) and Board of Management of Holychild Community School v Two Female Teachers (EE/2/1985).
2.9 The Authority submitted that the claimant in this case was a more suitable candidate than the successful female candidate and that he was therefore treated less favourably in being denied access to the promotion. Applying the principle set out in the Wallace case, the Equality Officer was asked to infer discrimination from the facts of the case and to determine that this less favourable treatment was on grounds of sex.
2.10 The claimant sought the following remedies:
(i) a finding that the Board of Management of Coolmine Community School discriminated against him contrary to section 3 of the Employment Equality Act, 1977 in terms of section 2 (a) of that Act in...
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