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05.02.2020

€93,498 award in gender discrimination ruling

The Workplace Relations Commission (WRC) recently demonstrated the high price of losing a gender-based discrimination claim when it awarded a schoolteacher €93,498 compensation after she was overlooked for a school principal position in favour of a male colleague.

The basis of the claim

Ms Pamela Brennan made her discrimination claim against BOM Scoil Mhuire agus Iosaf Junior School on the grounds of gender and family status. Her claim alleged that:

  • The school advertised her position of acting deputy principal while she was on maternity leave; and
  • The school subsequently appointed a male colleague to the position of principal role despite her greater qualifications and experience.

Ms Brennan failed to make out the discrimination claim based on the family status ground, as she could not show that the man who was appointed to the position had a different family status.

The WRC, however, did examine the claim based on the gender ground, which contended that she was discriminated against by being denied the promotion when her relevant qualifications, competencies and experience were taken into account.

Prima facie case

Given that Ms Brennan had superior qualifications and more relevant experience than her male colleague, the WRC was satisfied that she made out a prima facie case of discriminatory treatment. Under the Employment Equality Acts, once a claimant establishes a prima facie case of discrimination the burden of proof shifts to the employer who must prove on the balance of probabilities that there was no discrimination.

The school’s defence

The school denied they had discriminated against Ms Brennan. They argued that during the previous filling of the temporary role they had offered it to two female candidates who both turned it down. During the more recent process, Ms Brennan had come second of four candidates. The two applicants she finished ahead of were men.

Furthermore, the school argued that the interview and marking process was “gender-neutral”. They said the successful candidate simply performed better and that “gender was not a consideration” during the process.

WRC ruling

The WRC concluded that:

  • The school did not provide a convincing and transparent rationale for the interview and selection process used to appoint the successful candidate.
  • The school had “no plausible explanation” for the inclusion of music and arts on the shortlisting criteria.
  • The school failed to make Ms Brennan aware of the role while she was on maternity leave.
  • Despite having more relevant experience and higher qualifications, and being marked on their CVs, Ms Brennan still scored lower for measurable and objective criteria.

The school, therefore, failed to provide cogent evidence to rebut the inference of discrimination   and the WRC ruled that on the balance of probabilities the selection process was tainted with discrimination on gender grounds

The WRC awarded Ms Brennan compensation equivalent of 78 weeks’ wages, totalling €93,498.

Note for employers

The maximum compensation that can be awarded in gender discrimination claims is set at 104 weeks’ remuneration. The WRC is also required by law to make orders for compensation that are ‘effective, proportionate and dissuasive.’ In other words, the sanctions in gender discrimination claims must have a real deterrent effect and for that reason, they are always particularly penal.

The decision also emphasises the importance of having strong, documented evidence that can rebut the inference of discrimination. Remember an employee only needs to establish an inference of discrimination to make a claim.

The case, in addition, highlights the serious risks of failing to eliminate both conscious and unconscious discrimination from interview processes.

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