McCabe v Board of Governors Erne Integrated College  (Sex Discrimination)  (13 November 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 3085/01

APPLICANT:	Kerry McCabe

RESPONDENT:	Board of Governors Erne Integrated College

DECISION

The unanimous decision of the tribunal is that the applicant has not been discriminated against on the grounds of her sex and her application is dismissed.

Appearances:

The applicant was represented by Ms S McKeagney Barrister-at-Law, instructed by Murnaghan & Fee Solicitors.

The respondent was represented by Ms F Lamont Barrister-at-Law, instructed by Education & Library Board Solicitor.

1.	The applicant was employed in 1995 as a teacher of technology and design and had been promoted to head of that department five years ago.  The applicant complained that she had been discriminated against on the grounds of her sex when she had applied for the post of Key Skills Co-ordinator and a man had been appointed.  She claimed that she had the necessary qualifications and experience but that the interviewing panel did not have the necessary training to have the knowledge and understanding of the post of skills co-ordinator and further that a panel member had a potential vested interest in the successful candidate.

2.	The applicant, in reply to a request for further and better particulars, contended that she had better qualifications and experience than the male who was appointed.  The applicant had BEng in electrical and electronic engineering, PGCE in technology and design education, PG Dip Tech Ed.  The successful candidate had a Certificate of Education which had been gained at Stranmillis College in 1984 when the Degree equivalents were not available.  He had been a teacher for four years and then had taken a break from teaching and had worked in the private sector for eight years becoming a sales manager in the motor trade before returning to teaching in 1995.  He had been appointed to his present post with the respondent in 1998.  The applicant said that she had more relevant experience as head of department for five years and had gained a vast knowledge whereas the successful candidate had not been head of department and therefore did not have the same level of experience.

3.	The post of key skills co-ordinator was a recent introduction into the college programme.  It was advertised internally.  Only two members of staff applied, however this has to be looked at in the overall picture as at that time there were quite a number of management vacancies being advertised.

The job description was prepared by the principal, Mr Noble, and the questions to be asked were drawn up by him in consultation with Mrs Coffey, vice principal.  The job description did not contain a minimum qualification or experience criteria and no particular level of teaching ability was prescribed.  Mr Noble said that the post holder did not need any subjects specialism to carry out the tasks as set out in the job description.  They were looking for someone with good organisation ability and this could have meant that a good junior teacher with those skills could have been appointed.  

The applicant contended that the CCEA handbook required that the key skills co-ordinator should come from senior management and therefore her experience as head of department for five years and the fact that she had been appointed as an external moderator clearly demonstrated that she had more relevant experience than the successful male candidate, who she contended had no management experience apart from a short period when he acted as head of assessment and reporting.  He did not have experience in internal or external moderation and therefore she considered that the successful candidate did not fill the criteria.

4.	The tribunal were provided with four booklets prepared by the CCEA entitled ‘Managing Key Skills Series’.  These booklets had been provided to the interviewing panel the week prior to the interviews to enable them to understand more fully what a key skills co-ordinator was required to do.

One section of booklet was headed ‘Teachers Qualifications’ and read as follows:-

	“No special key skills qualification needed.
	Check competence in assessing.
	Be familiar with level above and below.
	Both teaching and assessing key skills – different approaches possible”.

The booklet then posed the question, will teachers involved in key skill assessment need special qualifications?

It clearly stated that teachers did not need special qualifications.  They needed to be competent in the key skills they would be assessing.  In addition they should be familiar with the requirements of the relevant key skills unit both above and below the level they were assessing.

The tribunal did not accept the above information supported the applicant’s contention that a key skills co-ordinator had to come from senior management.  It was a matter for the principal as to how the post should be filled and he had decided that the assessment be made solely from the interview.  The fact that all candidates had to be teachers was the sole qualification criteria required, as only teachers could apply.  

5.	Following the interviews the points awarded by the four panel members indicate that those members were clearly of the opinion that Mr Kerr was the best candidate and the marks awarded were as follows:-

K McCabe			A Kerr
Mrs A McAloon			26				45
Mrs C Whiteley			31				42
Mr McAuley				31				46
Mr T Noble				31				49

The panel noted that the applicant had answered question four to a high standard however questions one, three and five had not been answered well and she did not cover the vital issues to be addressed.  She required considerable prompting and her answers were weak and disjointed.  At the conclusion of the interview the applicant sought clarification as to what question two required.  The panel agreed unanimously to offer the post to Mr Kerr.  They also noted that in the event of him not accepting the post it would have to be re-advertised and that the applicant would not be offered it.  However, she would be entitled to re-apply.

6.	The applicant contended that she gave more practical answers based on her experience and that the successful candidate gave text book answers.  She said that the model answers did not demonstrate an in-depth understanding of key skills.  She accepted when answering question two she had been prompted and was told she was not answering the question.  However, she said that the panel did not have a detailed knowledge of what was required from a key skills co-ordinator and that they did not have enough in-depth knowledge to know that she was answering the questions.  She complained that her qualifications and experience had not been taken into consideration and that it was not her performance at the interview that determined she did not get the job it was her sex.

7.	The applicant also complained that one of the interviewing panel, Mr McAuley, who was caretaker of the integrated primary school, had to seek permission to attend the interviews from the headmistress of the primary school and that the successful candidate was the husband of the headmistress.  

Mr McAuley denied that it was necessary for him to seek the permission of the headmistress.  It was customary for him to inform the secretary of the school that he was going over to the college.  On the day of the interview Mrs Kerr was not in attendance at the school as she had taken a class to Portora School.  He had been a member of the Board of Governors for seven to eight years and frequently attended the college for meetings as he was a member of the Finance committee, the Appointments committee and the Health and Safety committee.  Mr McAuley pointed out that he had been a panel member on several interviews with both candidates and both candidates had been successful on two of those occasions.  He said that the applicant in her previous interviews had been very articulate but at this interview she did not do herself justice.

8.	The applicant claimed during her answering of question three a mobile phone went off and that Mr McAuley left the room.  She complained that, notwithstanding his absence, he marked her down.  Her evidence in this matter was in conflict with the respondent’s witnesses, all of whom had a clear recollection that the phone rang during her answering question four and that was the question that she gave the best answer to.  Mr McAuley had left the room momentarily to switch the phone off and during his brief absence, which was said to have lasted thirty seconds, there was no further discussion and all waited until he returned to his seat.  Both he and the chairperson apologised for the interruption.  The tribunal accepted that this unfortunate interruption occurred during question four and that no discussion took place during Mr McAuley’s brief absence and the applicant did not suffer as a result of it.

9.	Mr Noble explained the reason for the appointment of a key skills co-ordinator.  It was a government initiative backed by the employers who considered young people were deficient in three basic skills, namely:-

(i)	Communication.
(ii)	Application of numbers.
(iii)	IT skills.

Prior to its introduction there had been discussions between principals of colleges in the Fermanagh area and he was well versed in all the literature on the subject.  Special skills were not required as key skills was cross curricular.  As principal he had a good overview of what key skills was trying to achieve.  The questions and model answers were based on information contained in the CCEA handbook.  He had a meeting with the interviewing panel the week prior to the interviews and explained the requirements for the post and that the successful candidate would be the one that performed the best at the interview.  

Mr Noble said that the applicant had to be prompted and she often sought clarification as to what the question meant.  In relation to question three she discussed external moderation at great length, the question did not relate to external moderation and in spite of prompting she made it the central answer to the question.  On the other hand Mr Kerr’s answer was excellent and at no time did he need prompting.

At the conclusion of the interviewing process it was unanimously agreed that the post should be offered to Mr Kerr.

10.	The interviewing panel was chaired by Mrs McAloon.  She has been involved in the college for ten years but her term as a governor expired in December 2002 so she was not a member of the board of governors at the present time.  She said that she had read the booklets provided and she had a prior knowledge of what was involved in key skills as the matter had been discussed at the board of governors meetings.  In her years as a governor she had attended approximately 350 interviews and in addition she had in her own work as a social worker been involved in interviewing panels.  She recalled that she had interviewed the applicant on four occasions and the applicant had been successful on two of those occasions.  She said that the applicant failed to answer some of the questions and had to be prompted by Mr Noble.  Her overall comment was that she had a strong sense that the applicant had not a grasp or knowledge of the information made available to the panel and did not demonstrate an in-depth knowledge.  On the other hand Mr Kerr had performed the best and gave the impression that he knew what the post entailed.  Each panel member marked at the end of each question and there was no discussion as to the markings.

11.	The tribunal heard evidence from the other panel members Mr McAuley and Mrs Whiteley, both of whom expressed the same opinion as Mr Noble and Mrs McAloon.  

Mr McAuley confirmed that he did not need to seek the permission of Mrs Kerr to attend board of governor meetings and on that particular day Mrs Kerr was not in attendance at the school.  He also had interviewed the applicant and Mr Kerr on other occasions and Mr Kerr had been unsuccessful on two of those occasions and it did not affect his relationship with Mrs Kerr.  

Mrs Whiteley had served eight years on the board of governors and she ran her own school and had received training in personnel management and in equal opportunities.  Both Mr McAuley and Mrs Whiteley confirmed that the mobile phone had rung during the applicant answering question four.

12.	Mrs Lamont in her submissions disputed the applicant’s contention that she was better qualified or had more relevant experience.  In fact Mr Kerr had been teaching for ten years and he had had management experience in the private sector.  It was accepted that he had originally qualified as a teacher when the qualification granted was a Certificate of Education and degree equivalents were not available.  However, this particular post did not require any specific qualification or experience, all teachers, notwithstanding their qualifications or experience, were entitled to apply and so all candidates started on an equal footing.  She submitted that the tribunal should be satisfied that Mr Noble had as much knowledge of key skills as was available.  She challenged the applicant’s assertion that the panel did not have an in-depth knowledge, the principal was there to give any advice and guidance that was necessary.  

The questions were based on the CCEA guidelines and contained the model answers.  The performance of the candidates therefore could be judged against an objective criteria.  The tribunal heard the evidence as to the poor performance of the applicant particularly in answering questions two and three.  It was clear that she had been unsuccessful because of her poor performance and that there was no gender discrimination in this case.

13.	Mrs McKeagney was critical of the fact that qualifications and experience had not been taken into consideration and contended that the applicant was better qualified and had more experience than the successful candidate.  She had demonstrated the knowledge of key skills and that she had studied them to a great degree.  She said that prompting on a number of occasions was because the panel wanted her to stick to the model answers whereas she was able to display a more in-depth knowledge.  Mrs McKeagney referred the tribunal to Article 63a of the Employment Rights Order and submitted that the applicant had presented the complaint and the respondent had not provided an adequate explanation and therefore the tribunal should find the applicant had been discriminated against.

14.	Findings of the tribunal:

(i)	The nub of the applicant’s case was that she was better qualified and had more experience than the successful candidate and this fact should have been taken into consideration on making the appointment.  It was not accepted by the respondent that the applicant was better qualified or had more experience than the successful candidate.  Mr Noble expressed the opinion that a Certificate of Education was now the equivalent of a Bachelor of Education (B Ed) and to that extent the successful candidate’s qualification did not differ from that of the applicant.  

As regards experience the successful candidate had ten years teaching experience in addition to eight years experience in the private sector four of which were at management level whereas the applicant had six years teaching experience.

The tribunal accepted that qualifications and experience did not form part of the criteria for the post and the tribunal did not need to make a finding as to whether she was better qualified or had more experience, both candidates met the required criteria.

(ii)	The tribunal accepted that the CCEA guidelines did not require special skills for the post of key skills co-ordinator and therefore there was no merit in the applicant’s contention that the appointment should have been made from senior management.

(iii)	The applicant stated that she had performed as well as the successful candidate at interview.  This assertion could only be made by the applicant from a perusal of the interview notes.  However, there was no foundation for such an assertion as the evidence before the tribunal from all the interviewing panel was that the applicant had to be prompted and did not appear to understand what was meant in particular in relation to question two.  The tribunal therefore do not accept that the applicant performed as well as the successful candidate.

(iv)	There was a conflict of evidence as to when the mobile phone rang.  The applicant had contended that Mr McAuley was absent from the room for some time, yet having missed some of her answer he marked her down.  She also said that this interruption occurred when she was answering question three.  All of the respondents witnesses clearly recall that the phone rang during the applicant’s response to question four.  The tribunal do not accept that the interruption of the mobile phone had a detrimental affect upon the applicant as that was the question she answered best.  The tribunal accept that Mr McAuley went to the door, switched the phone off and came back into the room and that all of that took less than one minute and during that short period no-one spoke and an apology was tendered by Mr McAuley and the chairperson.  The tribunal were of the opinion the weight of evidence was that the applicant’s recollection of this incident was not as clear as the respondents witnesses.

(v)	The applicant drew the tribunal’s attention to the fact that Mr McAuley was a caretaker of the primary school and that Mr Kerr’s wife was the headmistress and therefore he had a vested interest in the successful candidate.  The tribunal accept Mr McAuley’s evidence that he did not require Mrs Kerr’s approval to attend the interviewing panel and that he was a regular attendee at the college as he is a member of several committees and those duties required him to attend the college.  It was customary for him just to tell the secretary where he was going and that was the end of the matter.  He pointed out that he had interviewed Mr Kerr on four occasions and that on two of those Mr Kerr had been unsuccessful and that it did not affect his relationship with Mrs Kerr.  The tribunal found no justification for the assertion that Mr McAuley had a vested interest.  

(vi)	The applicant contended that the key skills co-ordinator should come from senior management.  The CCEA booklets did not support this contention and there was no requirement for the key skills co-ordinator to be a member of the management team and in fact the booklet stated that “no special key skills qualification needed”.

(vii)	Part of the applicant’s case was that the interviewing panel did not have sufficient in-depth knowledge of key skills in order to arrive at an objection decision.  The tribunal accepted that Mr Noble had as much knowledge as was available in this new area and that he had ensured the interviewing panel made themselves aware of the guideline booklets 1-4 issued by the CCEA.  In addition he had discussed the matter with them prior to the interviewing and that each of the interviewing panel would have had some prior knowledge as the matter had been discussed at board of governor meetings.

The tribunal do not accept the applicant’s assertion that she had more in-depth knowledge than the interviewing panel.

(viii)	The tribunal were of the unanimous opinion that the evidence before the tribunal there had not been facts which demonstrated that the applicant had been discriminated against on the grounds of her sex and therefore her reliance upon Article 63a of the Sex Discrimination Order was unsustainable.  The tribunal are of the unanimous opinion that the applicant had failed to be appointed because she did not perform at interview as well as the successful candidate and that her gender had not been a matter considered by the panel when they arrived at their decision.  Her application is therefore dismissed.

Chairman:
Date and place of hearing: 12 and 13 November 2003, Belfast
Date decision recorded in register and issued to parties: