In the case of Sarah Adam v Dublin and Dun Laoghaire Education and Training Board ADJ-00028925 the Workplace Relations Commission (“WRC”) was very critical of the interview process carried out by the Respondent school board following the Complainant’s return from maternity leave.
There were a number of complaints referred to the WRC on this matter, a complaint of discrimination on the grounds of gender and family status under the Employment Equality Acts 1998-2015 (“the Acts”), and complaints of harassment, victimisation, and discriminatory dismissal. Later a discrimination complaint on the ground of age and a complaint under the Maternity Leave Protection Act were also referred to the WRC.
Facts: The Complainant was employed as an art teacher in a school in the Respondent’s school network from 1st September 2019 until 31st August 2020 when her contract expired. The Complainant went on maternity leave from 16th December 2019 to 14th June 2020.
The Complainant told the WRC that she spoke to the principal of the school on 13th December 2019 about her pregnancy and expecting twins. Ms A was to cover the Complainant’s role during her maternity leave. The Complainant’s evidence was that the principal told her that an interview for a new art teacher contract would be held in 2020, but that it was only a formality, and that the role would be held open for her. The principal denied that she had told the Complainant it was a mere formality.
The Complainant interviewed for the art teacher role on 6th July 2020, but was informed that she was unsuccessful by letter received on 20th July 2020. She appealed this on 22nd July 2020 and her employment came to an end on 31st August 2020 on the expiry of her initial fixed term contract.
In the Complainant’s evidence she highlighted her extensive art and teaching qualifications and experience. There were only two candidates for the art teacher role in 2020, her and Ms A. Ms A was successful in obtaining the role. The Complainant appealed this and asked if there were any other opportunities in another school in the Respondent’s network, but this did not yield anything. According to Department Circular 25/2015, she would have been entitled to a contract of indefinite duration had she been appointed to a role in 2020. The Complainant explained that she was devastated by this loss of employment and following her dismissal she lost mortgage approval.
The Complainant gave evidence that the chair of the 2020 interview panel started the interview with “you’ve worked in a lot of schools”. The Complainant found this intimidating and argued that it raised an inference of age discrimination. The second question asked about continual professional development (CPD) in the previous year. The Complainant asked how she could have done more while she was on a protected leave. Some of the exchanges the Complainant found humiliating. The Complainant believed that she was undermarked in respect of her qualifications and that this raised an inference of discrimination. She also argued that she got no or insufficient marks for her online platform and she felt undermined. The Complainant gave evidence that she was asked by the principal about Teacher Leadership when the principal was aware that she had not been able to get involved due to her pregnancy.
The Respondent did not agree with the Complainant’s arguments in respect of her interview and the principal denied indicating to the Complainant that the role was guaranteed.
Decision: The Adjudicator confirmed that it is well established that a decision not to renew an employee’s fixed-term contract because of their pregnancy amounts to gender discrimination, where it is proven. Section 85A of the Acts and Article 19 of the underlying Recast Directive (2006/54/EC) first require a Complainant to establish significant facts that raise an inference of discrimination, i.e., the burden of proof is initially on the Complainant. If an inference of discrimination is raised, it then falls to the Respondent to show there was no breach of the Acts. The Adjudicator referred to the Labour Court case of Moore Walsh v Waterford Institute of Technology EDA042 where it was held that it was not the function of the Court to substitute its views on a particular decision and “the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.”
In this case, the Adjudicator held that the Complainant had raised an inference of discrimination on the ground of gender. He compared the treatment of the Complainant and Ms A in the interview process, and also the Complainant’s interview in 2019 compared with her 2020 interview. He was satisfied that there were notable differences in her experience in 2019 compared with her interview in 2020:
“What was certainly different between the two interviews was that the interview panel did not know in 2019 that the complainant was pregnant, when they knew in 2020 that she had recently returned from maternity leave.”
The Adjudicator was satisfied that the Respondent had failed to rebut the inference. He found that there were “significant discrepancies in the running of the interview, the questions asked of the complainant and how her answers were recorded and assessed” by the panel. He also referred to the Respondent’s interview guidelines and the competency assessment which he found did not explain why both candidates scored equal marks in certain categories where the Complainant ought to have scored higher than Ms A.
The Adjudicator upheld the Complainant’s complaint of gender discrimination.
The Adjudicator also found that the Complainant had established a prima facie case of discrimination on the family status ground, which was not rebutted by the Respondent. He noted that
“what differentiated the complainant from Ms A in 2020, was that the complainant had two small children. The complainant in 2019 and Ms A in 2020 had different family statuses to the complainant in 2020; they did not have children.”
The Complainant’s complaints of harassment and victimisation were not upheld. The Adjudicator found there was not enough evidence of victimisation and that the questions asked in the interview did not violate the Complainant’s dignity. The Adjudicator was also of the view that there was no standalone finding of discriminatory dismissal to be made.
Redress: When assessing redress, the Adjudicator noted that compensation for the effects of discrimination must be “effective, proportionate and dissuasive”. The Adjudicator awarded the Complainant redress of €35,000 for the discrimination on grounds of gender and family status.
Takeaway for Employers: There is strong legal protection provided to gender, in particular arising from pregnancy and maternity leave, under both Irish and EU law and this was noted by the Adjudicator:
“As reflected in the case law…the legal protection afforded to gender in particular arising from pregnancy and maternity leave deserves effective, proportionate and dissuasive legal protection.”
Employers should ensure that their interview processes are fair to all candidates and that there is full transparency in their assessment methods. While there is always an element of subjectivity in the decision of any interview panel, the Adjudicator in this case highlighted that what is required by the Employment Equality Acts is that each candidate’s application is considered in full and fairly. In this case what was striking was the clear, demonstrable difference in the approach of the interview panel towards the Complainant compared with their approach towards Ms A, along with the different assessment and experience of the Complainant in 2019 than in 2020.
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
23rd December 2022