FAIR EMPLOYMENT TRIBUNAL

CASE REF:	353/04FET

CLAIMANT:			Martin Connolly			

RESPONDENT:		Edmund Rice College	

DECISION 
The decision of the Tribunal is that the Tribunal does not have jurisdiction to consider the claimant’s complaint in view of Article 71 of the Fair Employment and Treatment Order 1998 and his claim is therefore dismissed.           

Constitution of Tribunal:

Chairman:		Mr I Wimpress (Chairman sitting alone).	
	
Appearances:
The claimant was represented by Mr J Bowers from the Employment Industrial Relations Service (ERIS).

The respondent was represented by Mr J Gordon Solicitor from Napier & Sons, Solicitor. 	

1.	The issue with which this Tribunal is concerned is whether the Tribunal has jurisdiction to consider the claim in view of Article 71 of the Fair Employment and Treatment Order 1998, (‘the 1998 Order’)

2.	The tribunal heard submissions on behalf of both the claimant and the respondent and was provided with a small bundle of documents in relation to the advertising process by agreement.	

3.	The claimant applied for a teacher of history post at Edmund Rice College in April 2003.  His application was unsuccessful but he was subsequently offered a temporary teaching post by the respondent for a one month period commencing at 

the start of September 2003.  In October 2003 he was asked to stay on and he remained in that position until June 2004.  It would appear from the claimant’s originating application that he was engaged as a teacher of religious education. The precise capacity in which he was so engaged during this period is somewhat unclear. However, for the purposes of determining the preliminary issue I am prepared to accept that the claimant was employed as a teacher of religious education at Edmund Rice College during this period.

4.	On 25 March 2004, an advertisement was placed in the Irish News for the post of teacher of history at Edmund Rice College.  The claimant applied for the post but was not short listed for interview due to the enhancement of the selection criteria.  The claimant later discovered that a student teacher who had been on placement at the school had been selected.  The claimant believed that this decision was influenced by the fact that the successful candidate was an active member of the Gaelic Athletics Association as were members of the short listing and interviewing panel. The claimant considered that the appointment of an unqualified teacher who was an active participant in the GAA constituted political discrimination. The claimant informed the school principal that he intended to appeal and also raised an objection to the short listing procedure through his trade union representative.  He ultimately appealed against the short listing procedure under Appendix V of the “Scheme for Appointment of Teachers” but was unsuccessful.

5.	Article 71 of the 1998 Order (as amended), insofar as relevant, provides as follows:-

	“71(1) Subject to paragraph (2) –

(a)	Part VII does not apply to or in relation to employment as a teacher in
a school; and

(b)	the other provisions of this Order do not apply to or in relation to the
recruitment of a person as a teacher in a school.

(1A)	For the purposes of paragraph (1)(b) “recruitment” means any step in
the process of engagement of a person for employment up to the commencement of the employment”.

6.	Mr Gordon, on behalf of the respondent, submitted that the claimant was excluded from the right to complain of discrimination contrary to the 1998 Order because the appointment arose from a process for recruiting a teacher in a school and that therefore the Fair Employment Tribunal had no jurisdiction to entertain his claim.

7.	Mr Bowers, on behalf of the claimant, contended that as the claimant was already employed by the respondent at the time of the recruitment competition, his application for a teaching post did not constitute recruitment but rather should properly be regarded as an appointment.  Once a person was employed as a teacher at a school, he submitted, he acquired the protection of the 1998 Order.

8.	I do not accept Mr Bowers’ contention.  While there is some doubt about the claimant’s precise employment status, I am prepared to assume in his favour that at the material time he was employed as a teacher of religious education at Edmund Rice College.  Whilst so employed he decided to apply for a different post, namely the post of teacher of history at the same establishment. 

9.	I am entirely satisfied that when the claimant applied for the post of teacher of history at Edmund Rice College in March/April 2004 he was participating in a recruitment process that would ultimately lead to the appointment of the successful candidate as a teacher of history at Edmund Rice College.  In applying for this post, he was clearly partaking in a process that would lead to the engagement of a person for employment.  The claimant may well have been the only internal candidate but that does not detract in any way from the fact that he amongst others was seeking to be recruited as a teacher for that particular post.  It could not plausibly be contended that candidates were not participating in a recruitment process given that the post was advertised in the Irish News.  Furthermore, it cannot be the position that external candidates were participating in a recruitment exercise whereas internal candidates such as the claimant were not.  The distinction that Mr Bowers attempted to make between “recruitment” to the position of teacher and “appointment” as a teacher is a distinction without a difference.

10.	The claimant is therefore excluded from the right to complain of discrimination contrary to the 1998 Order and his claim is therefore dismissed.           

Chairman:

Date and place of hearing:	13 April 2006, Belfast.

Date decision recorded in register and issued to parties: