School Cleared of Victimisation Allegation in WRC Case

The Workplace Relations Commission has dismissed a complaint that a teacher was discriminated against in an interview and during their employment because of an ongoing WRC claim against a separate school. Our Education Law team examines the facts of the case and highlights the importance for schools of conducting fair, transparent interviews and avoiding procedural deficiencies.

What you need to know

• The teacher alleged that she was victimised during the course of the respondent school’s recruitment process. She claimed that this was because of an action she had taken to the WRC against another school under the Employment Equality Act.
• She alleged that this discrimination took the form of unequal terms and conditions of employment. Additionally, she was not successful in being employed on the school’s supply panel, which she had been working on successfully for almost two years.
• While the WRC ruled that proceedings against a third party could be deemed a protected act, the teacher failed to show that she was being victimised against in the first instance.

The complainant in this case alleged that she was victimised in a school recruitment process, as well as in her terms and conditions of employment, because of Workplace Relations Commission (WRC) proceedings she was taking against another school. The complainant alleged that these proceedings were a ‘protected act’ under the Employment Equality Acts 1998 to 2015.

The complainant was employed by the respondent school as a substitute teacher for a period of eight months, before being employed as a non-casual substitute for the duration of the 2023/24 school year. Two other teachers were recruited at this time and received fixed-term contracts. This meant that they received holiday pay which the complainant was not entitled to. The complainant interviewed unsuccessfully for another position on the respondent school’s supply panel in July 2024.

Burden of proof for victimisation

The WRC laid out the burden of proof required to successfully argue a victimisation claim as set out under section 85A of the Employment Equality Acts. Firstly, a claimant must prove that there is a causal connection between the protected act they have carried out and the adverse treatment of the employer. The employee must demonstrate the primary facts from which it can be inferred that the employer has victimised the employee. The facts must have sufficient weight to raise a presumption of discrimination. It is then for the employer to prove that there was no discrimination.

The claimant failed to demonstrate the facts as required under section 85A, as there was no evidence that the respondent school knew about the ongoing WRC complaint at the time of interview.

The undertaking of a ‘protected act’ must also be an operative factor in the discrimination. This means that the employee would not have been adversely treated by their employer but for the protected act. The complainant in this case failed to reach this threshold, she did not prove that she would have outscored other candidates but for her ongoing WRC proceedings.

Employment contract

The complainant alleged that she was subject to unequal and / or less favourable working conditions for work than the other two teachers recruited for the 2023/24 school year. She was employed as a non-casual substitute teacher, whereas the other two new teachers were appointed on fixed term contracts and were therefore entitled to holiday pay including pay for the summer break. The WRC found in favour of the school on this point. The non-casual substitute role arose out of the nature of the parental leave of full-time staff, which it was covering. The school could not offer a role which was not sanctioned by the Department of Education. The terms and conditions of the complainant’s employment were in accordance with her role.

Interview process

The WRC identified several instances of poor procedures in the selection process on the part of the school. In particular, it cited instances where:

• Application forms were not presented to the Board at the interview stage
• The interview panel did not take notes during the 2024 interviews, and
• Candidates were not informed of the criteria of selection in advance of their interviews.

The WRC pointed out that all candidates were subject to these poor procedures, not just the complainant. However, the WRC determined that poor procedures are not valid evidence of victimisation.

Key takeaways

While the school successfully argued that there was no victimisation, the adjudication officer’s views serve as a timely reminder to schools of the importance of conducting interviews in line with best practice, in particular Circular 44/2019, and avoiding procedural deficiencies.

For more information and expert advice on adhering to best practice in the context of recruitment processes, or defending similar claim, contact a member of our Education Law team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.