INTO & GENDER DISCRIMINATION INTO Equality Conference Portlaoise, September, 2016

1. INTO & GENDER DISCRIMINATION INTO Equality Conference Portlaoise, September, 2016 Anne McElduff, B.Ed., LL.B., BL. INTO Assistant General Secretary

2. SAFETY, HEALTH AND WELFARE AT WORK ACTS 2005 & 2010SAFETY, HEALTH AND WELFARE AT WORK (GENERAL APPLICATION) REGUALTIONS 2007 HEALTH & SAFETY AUTHORITY (HSA) • APPLIES TO ALL EMPLOYERS, EMPLOYEES (INCLUDING FIXED-TERM AND TEMPORARY) AND SELF-EMPLOYED PEOPLE IN THEIR WORKPLACES • SETS OUT RIGHTS AND OBLIGATIONS FOR BOTH EMPLOYERS AND EMPLOYEES • PROVIDES FOR SUBSTANTIAL FINES AND PENALTIES FOR BREACHES OF THE HEALTH AND SAFETY LEGISLATION

3. EMPLOYERS DUTIES HAS DUTY TO: • ENSURE EMPLOYEES’ SAFETY, HEALTH AND WELFARE AT WORK AS FAR AS REASONABLY PRACTICABLE... • PROVIDE AND MAINTAIN A SAFE PLACE OF WORK...PROVIDE INSTRUCTIONS AND TRAINING TO EMPLOYEES ON HEALTH AND SAFETY....HAVE PROPER PROCEDURES IN PLACE TO DEAL WITH IMPROPER CONDUCT OR BEHAVIOUR....

4. APPOINT A SAFETY OFFICER • DRAFT A SAFETY STATEMENT • CARRY OUT RISK ASSESSMENTS TO IDENTIFY POTENTIAL HAZARDS..... • TO REPORT ANY ACCIDENT THAT RESULTS IN AN EMPLOYEE MISSING 3 CONSECUTIVE DAYS AT WORK TO THE HEALTH AND SAFETY AUTHORITY (HSA)

5. EMPLOYEES MUST TAKE REASONABLE CARE TO PROTECT THE HEALTH AND SAFETY OF THEMSELVES AND OTHERS; NOT TO ENGAGE IN IMPROPER BEHAVIOUR OR CONDUCT; NOT TO BE UNDER THE INFLUENCE OF DRINK OR DRUGS IN THE WORKPLACE; REPORT ANY DEFECTS IN EQUIPMENT ETC....

6. BULLYING - EMPLOYER SHOULD ESTABLISH PROCEDURES FOR DEALING WITH COMPLAINTS IN THE WORKPLACE • INTO/MANAGEMENT AGREED WORKING TOGETHER PROCEDURES • CODE OF PRACTICE FOR EMPLOYERS AND EMPLOYEES ON THE PREVENTION AND RESOLUTION OF BULLYING AT WORK • HARASSMENT – EMPLOYER HAS DUTY UNDER THE EEA ACTS TO PREVENT HARASSMENT IN WORKPLACE - CLAIM TO EQUALITY TRIBUNAL UNDER 9 GROUNDS

7. VICTIMISATION – EMPLOYEE CANNOT BE VICTIMISED FOR MAKING A COMPLAINT UNDER THE H&S ACTS I.E. DISCIPLINED OR TREATED LESS FAVOURABLY • ENFORCEMENT.. ..COMPLAINT TO HSA/RIGHTS COMMISSIONER/EQUALITY TRIBUNAL – 6/12 MONTHS

8. HARASSMENT DEFINED AS “ANY FORM OF UNWANTED CONDUCT RELATED TO ANY OF THE DISCRIMINATORY GROUNDS” • SEXUAL HARASSMENT DEFINED AS “ANY FORM OF UNWANTED VERBAL, NON-VERBAL OR PHYSICAL CONDUCT OF A SEXUAL NATURE” ......BEING CONDUCT ..... WHICH HAS THE PURPOSE OR EFFECT OF VIOLATING A PERSON’S DIGNITY AND CREATING AN INTIMIDATING, HOSTILE, DEGRADING, HUMILIATING OR OFFENSIVE ENVIRONMENT FOR THE PERSON

9. VICARIOUS LIABILITY APPLIES....IE EMPLOYER LIABLE “WHETHER OR NOT IT WAS DONE WITH THE EMPLOYER’S KNOWLEDGE OR APPROVAL

10. TWO FEMALE TEACHERS V A BOYS SECONDARY SCHOOL - LABOUR COURT [2002] • CLAIMS BY TEACHERS IN RESPECT OF SEXUAL HARASSMENT ALLEGEDLY PERPETRATED BY SENIOR STUDENTS OVER A PROTRACTED TIME…INCLUDING SEXUALLY EXPLICIT NOTES/DRAWINGS & REMARKS, TEACHERS BEING SUBJECTED TO CRUDE REMARKS OF A SEXUAL NATURE….WOLF WHISTLING AND CAT CALLING…. • WHETHER COMPLAINTS TAKEN SUFFICIENTLY SERIOUSLY BY PRINCIPAL/BofM….RELIANCE ON DISCIPLINE WHERE PUPILS COULD BE IDENTIFIED…

11. INVOLVEMENT OF ASTI….AND APPARENT NEGATIVE RESPONSE OF PRINCIPAL/BofMTO THIS….AND INITIALLY TO REQUESTS FOR MEETINGS TO ADDRESS “A CULTURE….AMONGST STUDENTS…WHICH RESULTED IN NUMEROUS INCIDENTS OF SEXUAL HARASSMENT OF TEACHERS….THE ENVIRONMENT ….HAD BECOME POLLUTED BY SEXUAL HARASSMENT” • WHETHER THE CONDUCT OF STUDENTS COMES WITHIN AMBIT OF EMPLOYER’S LIABILITY

12. JUDGEMENT: • SITUATIONS CAN ARISE “IN WHICH THE EMPLOYER MAY ADOPT A COURSE OF ACTION TO AVOID HARASSMENT OF AN EMPLOYEE BUT THAT HARASSMENT NONETHELESS OCCURS” • DISCIPLINARY SANCTIONS NOT IN THEMSELVES SUFFICIENT….”TO ALLEVIATE OR CONTROL THE DEVELOPING CULTURE OF SEXUAL HARASSMENT….”

13. SCHOOL DID NOT TAKE SUFFICIENT MEASURES TO CONTROL THE SITUATION….EG DEVELOPMENT OF CODE OF PRACTICE/POLICY • EMPLOYER/BofMVICARIOUSLY LIABLE AND FAILED TO EXERCISE ADEQUATE CONTROL • DISCRIMINATION OCCURRED…..AS THE EMPLOYER/BOFM FAILED TO PROVIDE TEACHERS “WITH A PLACE OF WORK FREE FROM SEXUAL HARASSMENT” • AWARD OF 10K AND 20K RESPECTIVELY TO THE TWO TEACHERS

14. HIGH COURT [2011] - UNA RUFFLEY   V  ST ANNE’S SPECIAL SCHOOL • CLAIMANT AN SNA  • ISSUE CONCERNING USE OF SENSORY ROOM....WHETHER SNA LOCKED A PUPIL INTO SENSORY ROOM • WHETHER GENERAL PRACTICE BY SNA’S TO LOCK SENSORY ROOM

15. HC JUDGEMENT: • NOTED VARIOUS INTERACTIONS WITH THE PRINCIPAL…INCLUDING FURTHER INCIDENT OF ALLEGED “FALSIFICATION” OF PAPERWORK • WHETHER DISCIPLINARY ACTION/SANCTION APPLIED FAIRLY • REFUSAL OF APPEAL BY BofM • WHETHER TREATMENT OF CLAIMANT BETWEEN 14/9/2009 AND 27/10/2010 AMOUNTED TO BULLYING AND HARASSMENT....WAS BEHAVIOUR PERSISTENT OVER TIME?

16. WHETHER EMPLOYER/BOFM AWARE OF IMPACT OF DEVELOPMENTS ON CLAIMANT? • WHETHER CLAIMANT SUFFERED A PERSONAL INJURY – “A DEFINITE PSYCHIATRIC INJURY”....MEDICAL EVIDENCE [OF]...... DEPRESSION AND GENERAL ANXIETY DISORDER? • CLAIMANT ON SICK LEAVE DUE TO WORK RELATED STRESS • ? OF DAMAGES

17. COURT OF APPEAL [2015] – UNA RUFFLEY   V  ST ANNE’S SPECIAL SCHOOL 2 ISSUES CONSIDERED: • APPLICATION OF WRITTEN WARNING/FAIR PROCEDURES • WHETHER PRINCIPAL & BofM’S CONDUCT AMOUNTED TO BULLYING & HARASSMENT

18. DEFINITION OF BULLYING CONSIDERED….WHETHER PRINCIPAL’S/BOARD’S CONDUCT AMOUNTED TO “….REPEATED INAPPROPRIATE BEHAVIOUR….WHICH COULD REASONABLY BE REGARDED AS UNDERMINING INDIVIDUAL’S RIGHT TO DIGNITY AT WORK”

19. PRINCIPAL/BofM ARGUED: • APPLICATION OF THE DISCIPLINARY PROCEDURES DID NOT AMOUNT TO BULLYING…. • THERE WAS NO CAUSAL LINK BETWEEN PRINCIPAL’S/BofM’S ACTIONS AND PSYCHOLOGICAL INJURIES SUFFERED BY SNA • AWARD OF DAMAGES EXCESSIVE

20. CA RULED OUT MOST OF THE ACTIONS OF PRINCIPAL AND BofM AS NOT BEING INAPPROPRIATE….RECOGNISED ONE ACTION ONLY AS INAPPROPRIATE/NOT REPEATED….EG CA STATED: • BULLYING CAN ONLY BE IDENTIFIED RETROSPECTIVELY…. • INCIDENTS OF INAPPROPRIATE CONDUCT DO NOT HAVE TO BE “OF THE SAME NATURE OR CHARACTER…”

21. CA STATED… • WHAT AMOUNTS TO INAPPROPRIATE BEHAVIOUR MUST BE OBJECTIVELY DETERMINED….THE TEST DOES NOT CENTRE ON THE INTENTION OF PERSONS… • NOT INAPPROPRIATE: • TO ADVISE SNA SHE WOULD BE SUBJECT TO DISCIPLINARY PROCEEDINGS • NOT TO CONDUCT A PRELIMINARY INVESTIGATION/PRINCIPAL • TO KEEP SNA’S PERFORMANCE UNDER REVIEW

22. MONA JACKSON V CAHILL & CAHILL SOLICITORS [HC 6/7/2016] • CLAIM BY SOLICITOR OF B&H AGAINST THE PRINCIPAL • VARIETY OF COMPLAINTS CITED….INCLUDING…  • ERRATIC & INTIMIDATING BEHAVIOUR • DIFFERENT/INCONSISTENT TREATMENT…. RE THREATS OF PAY CUTS OF 20%/10%/5%, BONUSES, AND THREAT OF REDUNDANCY….(2010-2012 MAINLY & PRACTICE UNDER SOME FINANCIAL PRESSURE) • ISSUES RE NOTES, EMAILS AND MANNER OF DELIVERY

23. ISSUES RE PAYMENT OF HEALTH INSURANCE, PRACTICING CERT, CHRISTMAS BAR LUNCH IN CASTLEBAR • WHETHER WORK ENVIRONMENT TOXIC • PL’S WORK COMPETENCE NOT AN ISSUE • WHETHER COMPLAINTS WERE ONLY “AN EMOTIONAL REACTION TO HER PERCEPTION OF BULLYING”

24. TWO DIFFERENT/CONTRADICTORY PSYCHIATRISTS OPINIONS FOR PL AND DFT....PL’S EVIDENCE THAT SHE CAME TO SUFFER “SIGNIFICANT DEPRESSION AND ANXIETY” • COMPLAINTS ALL DENIED BY DFT…EG DENIED “SHOUTING….”, ACCEPTED ON OCCASIONS BECAME EXCITABLE AND BECOMING FLUSTERED & REFERRED TO OFFICE “JOKES AND A BIT OF CRAIC” • HR CONSULTANT HIRED….NO INDICATION OF OUTCOME & MATTER REFERRED TO WRC

25. STANDARD DEFINITION OF BULLYING ACCEPTED…. REPEATED & UNDERMINING OF DIGNITY AT WORK….OBJECTIVE VIEW – IE PERSON ENTITLED “TO BE TREATED WITH REASONABLE FAIRNESS IN THE EYES OF OTHERS” • FOR PERSONAL INJURY….+ RECOGNISED PSYCHIATRIC INJURY (NOT ORDINARY STRESS) + REASONABLE FORESEEABILITY

26. JUDGEMENT: • CASE FINELY BALANCED….”WITH UTTERLY NO CLEAR CUT RESOLUTION….” • “VERY LITTLE CORROBORATION OF VERSIONS ADVANCED BY EITHER PARTY” • PL FOUND TO BE “MORE RELIABLE HISTORIAN…[THOUGH]…OTHER ASPECTS OF HER TESTIMONY HAVE CAUSED…MISGIVINGS [EG FAILURE TO DISCLOSE HIP SURGERY..ETC]” • PL “MORE RELIABLE AND PERSUASIVE WITNESS”

27. FINDING 8:4 IN FAVOUR OF PL….A NUMBER OF INCIDENTS MET THE “THRESHOLD FOR WORKPLACE BULLYING” • €50K AWARDED WITH 20% DEDUCTED TO REFLECT HC VIEW THAT IN CERTAIN INSTANCES PL “LESS THAN CANDID”

28. APPOINTMENT PROCEDURES • GOVERNANCE MANUAL – APPENDICES D & E • ADVERTISING RULES • SELECTION PROCEDURES • CRITERIA FOR ASSESSMENT • DISCLOSURE OF INTEREST • INTERVIEWS

29. SEQUENCE LEADING TO APPOINTMENT/CONTRACT • RETENTION OF RECORDS

30. EMPLOYMENT EQUALITY ACTS, (EEA) (1998-2008) EEA- SCOPE - ASPECTS OF EMPLOYMENT THAT ARE COVERED INCLUDE: • ADVERTISING • EQUAL PAY • ACCESS TO EMPLOYMENT • VOCATIONAL TRAINING AND WORK EXPERIENCE • TERMS AND CONDITIONS OF EMPLOYMENT • PROMOTION OR RE-GRADING • CLASSIFICATION OF POSTS • DISMISSAL • COLLECTIVE AGREEMENTS

31. EEA: O’ CONGHAILE V BOM OF MERCY MEAN SCOIL MHUIRE, GALWAY [DEC – E2007 -068] • APPLICATION FOR PRINCIPALSHIP....WHETHER THERE WAS DISCRIMINATION ON AGE GROUND • CLAIMANT 36 YEARS EXPERIENCE...HIGH PROFILE....ACTIVE IN EDUCATION/UNSUCCESSFUL/YOUNGER CANDIDATE APPOINTED...

32. WHETHER QUESTION AT INTERVIEW DISCRIMINATORY...“...WHY SHE WAS APPLYING FOR THE JOB AT THIS TIME IN HER LIFE” V RESPONDENT’S CLAIM QUESTION WAS “CAN YOU OFFER SELECTION COMMITTEE A BRIEF OUTLINE AS TO WHY YOU FEEL, AT THIS STAGE IN YOUR CAREER, THAT YOU ARE THE MOST SUITABLE CANDIDATE....” • ISSUE OF QUALIFICATIONS/EXPERIENCE/EXPERTISE OF SELECTION BOARD

33. EO....THERE IS NO EXHAUSTIVE LIST OF FACTORS WHICH CAN BE REGARDED AS INDICATIVE OF DISCRIMINATION.....AN INFERENCE OF DISCRIMINATION CAN ARISE....” • RELIANCE ON EU JURISPRUDENCE – “...IT IS SETTLED LAW THAT DISCRIMINATION CAN ARISE NOT ONLY THROUGH THE APPLICATION OF DIFFERENT RULES TO COMPARABLE SITUATIONS BUT BY THE APPLICATION OF THE SAME RULE TO DIFFERENT SITUATIONS”.....IE COULD THE DISPUTED QUESTION ASKED OF ALL THE CANDIDATES HAD A DIFFERENT SIGNIFICANCE FOR EACH?

34. ALL RECORDS NOT MAINTAINED & INCONSISTENCIES....CAN LEAD TO AN INFERENCE OF DISCRIMINATION • EO EMPHASIS ON OPENNESS AND TRANSPARENCY

35. DISCRIMINATION - WHERE “A PERSON IS TREATED LESS FAVOURABLY THAN ANOTHER PERSON IS, HAS BEEN OR WOULD BE TREATED IN A COMPARABLE SITUATION, ON ANY OF THE GROUNDS SPECIFIED... • INDIRECT DISCRIMINATION ....WHERE AN APPARENTLY NEUTRAL PROVISION PUTS PERSONS AT A PARTICULAR DISADVANTAGE....UNLESS THE PROVISION “IS OBJECTIVELY JUSTIFIED BY A LEGITIMATE AIM AND THE MEANS OF ACHIEVING THAT AIM ARE APPROPRIATE AND NECESSARY”...... • IMPUTED BY ASSOCIATION

36. A TEACHER V A NATIONAL SCHOOL DEC-E2014-097 • CLAIM FOR DISCRIMINATION ON THE GROUNDS OF AGE, RELIGION AND SEXUAL ORIENTATION CONTRARY TO S.6.2(d), (e) and (f) of the EEA 1998-2011 • RELIGION…“…WHERE IT IS REASONABLE....IN ORDER TO MAINTAIN THE RELIGIOUS ETHOS OF THE INSTITUTION.....OR......PREVENT AN EMPLOYEE OR A PROSPECTIVE EMPLOYEE FROM UNDERMINING THE RELIGIOUS ETHOS OF THE INSTITUTION”.... • FOR AGE IN CERTAIN CIRCUMSTANCES.....

37. INTERVIEW FOR PRINCIPALSHIP • ASKED “THOUGHTS ON …FORUM ON PLURALISM & PATRONAGE” & “WHAT ABOUT THE HOMO’S” • ALL QUALIFICATIONS SHOULD BE TAKEN INTO ACCOUNT WHEN AWARDING MARKS • CLAIMANT CITED HER QUALIFICATIONS AND EXPERIENCE....

38. PERSONAL OPINIONS SHOULD NOT BE ASKED FOR AT INTERVIEW • QUESTIONS IN RELATION TO SEXUAL ORIENTATION ARE UNLAWFUL • AWARD OF €54,000 • AWARD UPHELD BY THE LABOUR COURT

39. EEA: MURRAY V BofM, SCOIL MHUIRE, SWANLINBAR [DEC – E2005 -015] • PERMANENT POST/ CLAIMANT UNSUCCESSFUL/ WHETHER GENDER DISCRIMINATION • QUESTION AT INTERVIEW ABOUT HER MATERNITY LEAVE/WHEN IT WOULD END/WHEN AVAILABLE & COMMENT ABOUT DIFFICULTY IN OBTAINING SUBSTITUTE TEACHERS

40. DENIED BY RESPONDENT...ARGUED OBJECTIVE CRITERIA & ALL CANDIDATES ASKED WHEN AVAILABLE • SELECTION BOARD OUTLINED ITS PROCESS....RELIED ON COMPETENCY TO TEACH IRISH & EXPERIENCE IN MULTI-CLASS TEACHING... • NO INDIVIDUAL MARKING SHEETS...

41. CLAIMANT INFORMED SHE WAS UNSUCCESSFUL DUE TO HER UNAVAILABILITY... • WHETHER QUESTION C/WOULD NOT HAVE BEEN ASKED OF A MALE CANDIDATE....LINKING OF NON-APPOINTMENT TO PREGNANCY/MATERNITY – IE GENDER GROUND

42. WHETHER THE RESULT WAS BASED SOLELY ON THE CANDIDATES PERFORMANCE AT INTERVIEW & CVs • WHETHER QUESTION WAS INDIRECTLY DISCRIMINATORY....AS MORE WOMEN THAN MEN WOULD BE ADVERSELY AFFECTED ....IN CIRCUMSTANCES WHERE THE PREGNANCY WAS KNOWN IN ADVANCE....

43. WHETHER MISMATCH BETWEEN FORMAL SELECTION CRITERIA AND THOSE APPLIED IN PRACTICE.... • WHETHER STANDARDS OF FAIRNESS, TRANSPARENCY, OBJECTIVITY AND GOOD PRACTICE WERE BREACHED.... • €10,000 COMPENSATION AWARDED.