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The recent case of Pamela Brennan v BOM Scoil Mhuire agus Iosaf Junior School resulted in large award of €93,498 or 78 weeks to the claimant for gender discrimination.

Background

The claimant in this case alleged that she was discriminated against on the basis of her family status and gender by the respondent (school) in failing to notify her of an acting up opportunity when the position of acting deputy principal arose in the school on the 25th.January 2018.

Claim in respect of Acting up Position

The claimant argued that this violated her conditions of employment while on maternity leave and denied her “ the opportunity to gain principal’s experience in preparation for promotion in favour of another colleague”. The school contended that this part of the complaint was out of time as the filling of the acting post took place on the 25th.January 2018 but the claimant did not lodge her complaint until 30th August 2018. It should be noted that in general an employee has 6 months from the most recent date of discrimination to lodge a claim to the Workplace Relations Commission. This can be extended in certain circumstances.

The claimant submitted that additionally the delay in making the complaint arose from her having to investigate the matter and obtain advice from her trade union. she stated that she was unaware of the filling of the post until late March 2018 when she was advised that the successful candidate would not be teaching her child going forward.

The Workplace Relations Commission however found that the claimant was out of time on this part of her complaint.

Discrimination on the grounds of family status

The Adjudicator than looked at Section 85A of the Equality Acts 1998 (as amended) which places the burden of proof on the claimant to show from the facts presented that discrimination may have occurred. It found however that no evidence was presented by the claimant to demonstrate that the successful candidate in the competition for school Principal  was of a different family status. It also noted that no evidence was advanced in the claim for promotion with respect to training and therefore the claimant was not successful in this part of her claim.

Discrimination on the grounds of gender

Here the claimant stated that she was discriminated against with respect to promotion for reasons of gender and was denied promotion on the basis of her relevant qualifications competencies and experience.

The Adjudicator in this case noted that

“….. the claimant had higher qualifications and more relevant experience than the claimant for the position of School Principal. The claimant had an Honours B. Ed Degree and a Higher Diploma while the successful candidate had a BA in English and Philosophy and a Higher Diploma. The claimant had 12 years accredited service as a primary teacher while the successful candidate had 10 years according to his CV ; 7 years according to the claimant .The claimant had 5 years experience as a Deputy Principal while the successful candidate acted as Deputy Principal from the 25th.Jan. 2018 to 02.2018 and shared acting Principal duties for approx. 4 months  to the 5th.June 2018 when the claimant returned prematurely from maternity leave”

The Adjudicator also had regard to the provisions of Circular’s 63/2017 & Circular 70/2018 which cover Leadership and Management in Primary Schools and which described the role of Deputy Principal as occupying “ a position of vital importance within the senior leadership team in a school”.

Marking Scheme and Requirement of “Music and Arts”

The Adjudicator noted the marking scheme in the interview process whereby the claimant’s combined score for relevant qualifications was 28 marks and the successful candidate’s combined score for relevant qualifications was 30 marks. The claimant’s combined marks for relevant experience was 24 marks. The successful candidates combined marks for relevant experience was 29 marks.

The Adjudicator queried why the subjects of music and art were seen to be desirable to the role of Principal. She noted

” The post at issue was an administrative principal’s post. It is noteworthy that no explanation has been proffered as to the justification for  identifying these 2 particular extracurricular criteria as desirable for an administrative principal’s post. The inclusion of these criteria clearly favour the successful candidate over the claimant who teaches generic subjects and in respect of whom no extra curricular criteria were identified. I am satisfied in the absence of any plausible explanation for this from the respondent that an inference of a predisposition to the successful candidate can be drawn”

Failure to Notify the Claimant of Acting Vacancy

The Adjudicator questioned the school’s failure to notify the claimant of the acting vacancy and noted it was inconsistent with best practice in the public sector. She stated “…it may be a factor from which an inference of discrimination can be drawn” and then stated the burden of proof passed to the school “...to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on her gender”.

When were marking sheets completed?

The Adjudicator noted that “Contradictory evidence was advanced by the panel members in relation to when the marking sheets were completed with the Chairman asserting they were completed after each candidate left the room while the other panel members indicated that the marking sheets were completed at the end of what was described as a comparative process and based on the notes they took during the course of the interview”.

The chairman was unable to offer an explanation for reducing the claimant’s marks by 2 points and the Adjudicator observed that he took “significantly more notes of the successful candidates answers”.

It was further noted “No questions were directed at either candidate in relation to their qualifications and or experience nor were any such questions included in the list of questions submitted into evidence in the respondent’s booklet.…..It is significant that these 2 criteria are measurable and objective and that their combined points favoured the male candidate while on paper the claimant’s qualifications and experience are superior to the male candidate”. The Adjudicator questioned the scoring process and the interview notes taken.

Conclusion

On the basis of the evidence, the Adjudicator found that the respondent had not provided “convincing and transparent rationale for their scoring” and found the process was “tainted with discrimination on gender grounds”

The Adjudicator finally stated that “the sanction is required to have a real deterrent effect. I require the respondent to pay the claimant compensation of 78 weeks remuneration amounting to €93,498 for this breach of her rights under the Act“.