In Pamela Brennan v BOM Scoil Mhuire agus Iosaf Junior School, the WRC awarded Ms Brennan €93,498 as compensation for gender discrimination, after she was overlooked for the school principal role in favour of a male colleague.
Ms Brennan claimed that she was discriminated against by the Board of Management on the grounds of gender and family status, in the following respects:
- the School failed to notify her of the opportunity to fill a temporary acting deputy principal role while she was on maternity leave; and
- the School appointed a male colleague to the permanent principal role instead of her.
The WRC dismissed her first complaint for being outside the default six month time limit for bringing a claim, where there was no reasonable cause for extension despite Ms Brennan's assertions that she had needed time to consider her options and take advice from her trade union. Her second complaint was only partially allowed, on the gender ground, as she gave no evidence that the male colleague had a different family status.
Reversing the burden of proof
To succeed on the gender ground, Ms Brennan had to raise a prima facie case under Section 85 of the Employment Equality Acts 1998 to 2015 by establishing facts from which it could be presumed there had been discrimination. Once raised, the burden of proof would switch to the School to prove that there was no discrimination.
The facts she put forward included that she was of a different gender to the successful candidate, that she had "higher qualifications and more relevant experience" than him and yet that she had received lower marks than him in the marking sheets for those criteria. Further, the description of this "administrative role" inexplicably included "music and art" as being desirable, which favoured the successful candidate over her as he taught those subjects while Ms Brennan taught general subjects.
The School's defence
The School denied that it discriminated against Ms Brennan, arguing that:
- The previous filling of the temporary role of deputy principal by the candidate who later obtained the principal role over Ms Brennan only occurred after two female colleagues had already turned down that role which arose "on an emergency basis requiring immediate action".
- Four candidates applied for the role of principal and Ms Brennan finished second, ahead of two other candidates who were both male.
- Each interview panel member completed their own marking sheet and kept their own interview notes consistent with Departmental rules. No criterion for the role was directly or indirectly discriminatory. Further, "[n]o questions were asked or statements made that indicated that [her] gender was an issue".
- The role was primarily awarded based on the interview and the successful candidate simply performed better. The School said "gender was not a consideration" and the scoring scheme and questions were "gender neutral". Interestingly, the majority of the interview panel who made the decision were female.
Decision of the WRC
The WRC emphasised it was established law that its role is not to decide who is the "most meritorious candidate for the disputed position". Instead, the question for the WRC is whether or not the selection was "tainted by unlawful discrimination".
The WRC concluded the burden of proof had switched to the School following Ms Brennan's establishment of the following facts, which in the circumstances gave rise to an inference of a predisposition to the successful candidate:
- The School had "no plausible explanation" for the music and art criterion.
- Although the measurable and objective criteria of qualifications and experience appeared to have been marked solely based on the candidates' CVs (given that no questions on the topics were asked at interview stage), Ms Brennan scored lower on both counts despite the WRC finding she had "higher qualifications and more relevant experience".
- The School had not informed her of the temporary role while she was on maternity leave. Although this was not less favourable treatment it could give rise to an inference of discrimination.
The WRC noted that for the School to discharge the burden of proof that there was no discrimination would require "cogent evidence", given that the School alone could possess the facts to do so. The WRC also noted it must remain alert to "unconscious or inadvertent" discrimination.
The WRC found the School had not discharged the burden of proving the decision not to appoint Ms Brennan was in no way tainted by any discrimination, whether conscious or unconscious. The WRC relied on the following reasons:
- The members of the interview panel gave contradictory evidence as to whether they marked the assessments contemporaneously (immediately after each interview) or comparatively (after all candidates were interviewed).
- A panel member also contradicted the chairperson's evidence that Ms Brennan had said little in relation to her "vision" for the school.
- The notes of panel members contradicted the School's defence that the selection of principal was based solely on interview performance.
- The chairperson's evidence was "unconvincing and inconsistent". For example, he reduced Ms Brennan's score by two points but had no explanation why. Despite his contention that "his style" was to take little notes, he had taken far more notes of the successful candidate's interview than he did of Ms Brennan's.
The WRC concluded that the School provided neither a "convincing and transparent rationale" for their assessment nor "cogent evidence to rebut the inference of discrimination". As a result, the interview process had been tainted with gender discrimination.
Ms Brennan was awarded 75% of the maximum award available to the WRC in this case, comprising €93,498 (the equivalent of 78 weeks' remuneration). The WRC said it calculated this based on the need for its order to be "effective, proportionate and dissuasive" and to have a "real deterrent effect".
Advice to employers
This case emphasises the importance of a properly documented, transparent, objective and evidence based interview process. It is also a prime example of how a heavy burden of proof lies on an employer to show there was no discrimination where a claimant has overcome the lesser burden of raising an inference of discrimination.
Employers must show clearly not just an absence of conscious discrimination, but also of any unconscious or inadvertent discrimination.
The employer in this case undermined the integrity of the application and selection process by what the WRC described as "anomalies" and "inconsistencies". These issues created pitfalls for the employer, both in relation to how the process was conducted and why substantive decisions were taken, which it was not able to overcome.
The size of the compensatory award granted should signal to all employers that time involved in carrying out and recording an application and selection process properly is time well spent.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.