The complainant was employed as a teacher by the respondent for a period until his retirement in 2011 following which he sought and was granted listing on the respondent’s “teacher contract” list. He applied for a position in August 2011 but he was informed that he was not shortlisted for interview. He asserted that this was because of his age as the person who was appointed had just qualified and had no work experience.
The respondent submitted that it was required to apply the Department of Education and Science Circular which stated that those appointed should be registered teachers and
“that unemployed teachers are offered employment in preference to those who have retired. It is applicable to all appointments made on or after 1 September 2011.”
The Circular goes on to state that where a suitably qualified registered teacher is not available then the school may employ an appropriately qualified retired registered teacher.
The complainant pointed out that the person selected was not a registered teacher. The respondent stated that he, the person selected, was entitled to a year to secure his teacher registration.
The Equality Officer considered the recent European cases Palacios de la Villa v Cortefiel Services SA (Case C411/11) creating opportunities in the labour market for jobseekers and in Fuchs v Lord Hessen (C-160/10) and Hornfeldt v Meddeland (C-141/11). The Equality Officer was ultimately satisfied that the Department’s Circular “complies with the concept of objective justification and is in harmony with Council Directive 2000/78/EC particularly in relation to the ECJ decision in Palacios de la Villa v Cortefiel Services SA in the context of creating opportunities in the labour market for jobseekers”.
That did not end the matter however as the Equality Officer found that the complainant was discriminated against in the manner in which the respondent implemented the provisions of the Departmental Circular. Neither of those shortlisted were registered teachers at the time of application. While the Circular provides for appointing a teacher who is not registered it is only where a registered teacher is not available. The Equality Officer found that those shortlisted did not satisfy the requirements of the post advertised and that the complainant was discriminated against at the first hurdle. By not shortlisting the complainant the respondent had implemented “a ban on retirees”. On that basis the complainant established a prima facie case which the respondent had failed to rebut.
The complainant was awarded €8,000 which was just over 60% of the maximum award in the circumstances.
Why is this case of interest?
- Where an employer has a policy indicating how a selection process is to be applied any deviation from that policy, regardless of how expedient it may be, will be problematic
Read the full case here: http://www.workplacerelations.ie/en/Cases/2014/June/DEC-E2014-041.html
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