EDA2323

1. Appeal Of Adjudication Officer Decision No(S)ADJ-00031983 CA-00042552-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 October 2022. A Labour Court hearing took place on 24 May 2023. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Dr Mohamed Saad (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00031983, dated 31 August 2022) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleged that he was discriminated against on the grounds of religion and race in the context of access to employment arising from his unsuccessful application for a one-year position as Assistant Professor/Lecturer in the Department of Experimental Physics in Maynooth University (‘the Respondent’). The Adjudication Officer decided that the complaints were not well-founded. The Complainant’s Notice of Appeal was received in the Court on 4 October 2022.

The Court heard the appeal in Dublin on 24 May 2023. The Complainant withdrew his complaint of discrimination on the religion ground at the hearing. The Court heard the Complainant’s sworn evidence. The Respondent had indicated in advance of the hearing that it intended to call two witnesses. However, following an application from the Respondent when Counsel’s cross-examination of the Complainant had concluded, the Court informed the Parties – having deliberated on the matter during the lunch break – of its decision that the Complainant had failed to establish facts from which an inference of discrimination on the race ground could be drawn.

The Factual Matrix

In June/July 2020, the Respondent advertised the role of Assistant Professor/Lecturer on a one-year contract. The advertisement noted that the successful applicant would need to have a proven record of teaching and research appropriate to career stage, though the role was primarily a teaching role, with candidates expected to take on a full teaching load in undergraduate and postgraduate programmes in the Department of Experimental Physics. The successful candidate would be welcome to pursue their own research in addition to this. The Complainant applied for the position on 19 July 2020.

A selection board was convened for the purposes of assessing applications submitted in response to the advertisement. This selection board consisted of Professor Ronan Farrell (Chair), Dr Marcin Gradziel, Professor Enda McGlynn (External, DCU), Dr Creidhe O’Sullivan and Dr Emma Whelan (‘the Selection Panel’).

Fifteen applications were received for the position and the Selection Panel deemed it appropriate to shortlist five candidates, including the Complainant, to interview for the post. The Complainant was invited to interview, and he (and all other candidates invited to interview) was asked to present on “The second law of thermodynamics”, a topic aimed at undergraduates attending their first dedicated thermodynamic course. Interviews with all five candidates were scheduled for 19 August 2020.

In advance of the interviews, the Selection Panel considered the role description set out in the job advertisement and devised a set of criteria to be assessed and applied to each applicant. These criteria were: teaching (60%), outreach/service (20%), and research (20%), where research could be aligned or facilitated within the Department within the 12 months of the contract period. All five candidates were interviewed and assessed on the basis of the objective criteria. The presentation was viewed as a significant and important part of the interview and candidates were instructed to present for no longer than 10 minutes. The Selection Panel considered the questions to be asked of the candidates, and assigned certain questions to each member of the Selection Panel, but each member was permitted to ask follow-up questions.

At interview, - which took place remotely via Zoom - the Complainant was found to have extensive teaching experience and a strong track record of academic leadership. He scored highly in the area of outreach activity and received a total of 74 points, which satisfied the 70-point threshold to be ‘appointable’ for the role. All five candidates who were interviewed for the post met this 70-point threshold. The highest-ranking candidate received a score of 80 and achieved the highest mark in the teaching section of all five candidates. He was offered, and accepted, the position.

The Complainant placed third in the competition, having received the third highest mark at interview, and on 21 August 2020, the Complainant was contacted by the Respondent’s Human Resources Office and informed that his application had been unsuccessful. The email outlined that the Selection Panel had been impressed by his application but that another candidate was considered to be better suited to the role and that the Complainant was a reserve candidate.

On 24 August 2020, and again on 27 August 2020, the Complainant wrote by email to the Respondent’s Human Resources department requesting feedback on the selection process, including his assessment scores and those of the successful candidate. Professor Ronan Farrell, the Chair of the Selection Panel, responded to the Complainant by email on 31 August 2020 confirming that his interview scores were excellent and explained the reasons the scores had been provided. He stated inter alia that:

• 
  “We acknowledge that you have extensive teaching experience, however the primary reason for the score being less than you may have expected is due to the poor quality of your presentation. This was a demonstration of your ability to put your teaching skills into practice. The issues included
  • 
    • It was difficult to identify a coherent thread in the presentation, as it was [being] given. It was clearer in hindsight

    • The slides very busy, overloaded, and lacking in explanation

    • The presentation style was not inspiring or engaging

    • Timing was poor.

  
  The weakness of the presentation argued for a lower score, but this was mitigated by your extensive experience and your answers to your questions. That said, it was a weakness and the scores reflect that weakness.

  I hope this helps answer your questions. I would like to repeat that we found you to be appointable and we were confident that you could do the job, but in this competition, you were not the top-ranked candidate.”

On 8 September 2020, Professor Ronan Farrell sent an email to the Complainant outlining the process used for awarding scores during the interview and further detailed why the Complainant had been awarded his score. He stated that:

• “In terms of teaching, the presentation influenced all aspects of the teaching assessment. There was not a specific subdivision for just the presentation. In terms of research and admin/outreach, there were also no individual sub-divisions of the marks, but a composite result. Please note that judgements on research are based on what is appropriate for the career stage of the applicant, allowing us to compare different applicants at different stages. Under research, the focus was a composite judgment on research achievements and the potential to contribute research going forward while at Maynooth. There was also a consideration of your ability to continue your research here at Maynooth. Your research would be difficult to support at Maynooth as we do not have the facilities, but this was only part of the consideration. We did note that you were continuing to publish even when you did not have extensive opportunities. Under administration and outreach, again the result was a composite judgement based on two elements. In terms of administration for this position we were looking for module level administration and basic department service – as appropriate for this position. In addition we were looking for a range of outreach activities – such as student recruitment, supporting students, etc. We noted your experience and your outreach activities and gave a strong mark in that category. I hope this helps explain the outcome a bit further.”

The Respondent replied to the Equal Status Claim on 25 November 2020, rejecting the allegations of discrimination, explaining it had discharged its obligations to provide feedback on the application process and noting that it had no obligations to the Complainant under the Equal Status Act 2000.

On 17 February 2021, the Complainant submitted a complaint to the Workplace Relations Commission under section 77 of the Act. His e-Complaint Form included a lengthy narrative in which the Complainant detailed why he believed that he had been discriminated against on the basis of religion and race during the selection process referred to above.

The Complainant’s claim under the Act came was heard by an Adjudication Officer on 5 April 2022 and 28 June 2022. In a written submission submitted immediately prior to the commencement of the hearing on 5 April 2022, the Complainant alleged, for the first time, that Professor Ronan Farrell had asked him a discriminatory question during his interview on 19 August 2020. He claimed that during the interview process, Professor Farrell asked him about the difference between Egyptian students and teaching in Egypt in comparison to Irish students and teaching in Ireland.

The Complainant’s Evidence

The Complainant outlined to the Court his educational qualifications, publications and extensive academic and practical experience in the field of experimental physics which, he submitted, rendered him by far the best qualified and most experienced of the five candidates interviewed on 19 August 2020 for the post of Assistant Professor/Lecturer in the Respondent’s Department of Experimental Physics.

The Complainant told the Court that that he was asked questions by the Chair of the Interview Panel - Professor Farrell - towards the end of his interview on 19 August 2020 which invited him to draw comparisons between Irish and Egyptian students of physics and the Complainant’s experience of teaching those different groups of students.

The Complainant informed the Court that he received an overall score of 74/100 which placed him in third place. His evidence was that he sought reasons from the Respondent after having been informed of the outcome of the selection process as to why his marks for the teaching component of the assessment were lower than he had expected to receive. He summarised the written feedback he received from Professor Farrell in this regard.

According to the Complainant, the experience of having been ranked in third place behind two candidates he considered to have less academic, teaching, publishing and industry experience than him has had a devasting effect on his career and personal life.

Under cross-examination, the Complainant accepted that the position with the Respondent for which he interviewed in August 2020 was primarily a teaching role. He further accepted that it was therefore reasonable on the part of the Selection Panel to devise a marking scheme in which 60% of the marks would be allocated to the competency of candidates in the area of teaching as determined at interview having regard, in particular, to each candidate’s ten-minute presentation on the Second Law of Thermodynamics. The Complainant agreed with Counsel that it was evident that he had put considerable effort into preparing his presentation because he was fully aware in advance of the significance the Selection Panel would place on the teaching element of the assessment process. However, the Complainant said he disagreed with the assessment of his presentation by the Selection Panel vis-�-vis those of the candidates placed ahead of him. The Complainant stated, in answer to Counsel’s questions, “They assessed me wrongly”.

Counsel put it to the Complainant that he had made no reference before 5 April 2022 to the allegedly discriminatory questions he claims in the within proceedings Professor Farrell asked him at the interview that had taken place on 19 August 2020. Counsel noted that the Complainant had not referred in his e-Complainant Form to the Workplace Relations Commission to having been asked the questions he now characterises as discriminatory on the race ground.

In answer to questions from the Court as to why he had not raised the issue of the allegedly discriminatory questions for over nineteen months following the interview, the Complainant said that he had no legal experience but had hoped to receive a recording of the interview which would confirm that the questions had been asked but then discovered that no such recording existed. He also told the Court that he didn’t fully realise the significance of the questions until he received some advice from a friend who helped him prepare for the hearing before the Adjudication Officer and who told him to tell everything at the hearing.

The Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

• “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

• “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

• “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Discussion and Decision

Having given careful consideration to the Parties’ written submissions and the Complainant’s sworn evidence, the Court finds that the Complainant has not established any facts from which an inference that he was less favourably treated on the grounds of race can be made.

The Complainant asserts that he was asked questions by Professor Farrell towards the end of his interview on 19 August 2020 which invited him to draw comparisons between Irish and Egyptian students of physics and the Complainant’s experience of teaching those different groups of students. It is abundantly clear to the Court and not disputed by the Complainant that he had made no reference to the questions he alleges Professor Farrell asked him – and which the Complainant submits are in themselves discriminatory – until he produced a written submission some forty minutes before the commencement of his hearing before the Adjudication Officer on 5 April 2022 ie. some nineteen months after his interview for a teaching post with the Respondent university had taken place. The alleged discriminatory questions are not referred to in the correspondence exchanged between the Parties after the interview process; neither are they mentioned in the extremely long narrative included in the Complainant’s e-Complaint Form. For these reasons, the Court finds that the Complainant’s assertions in relation to those alleged questions lack any credibility.

The appeal is dismissed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
1 June 2023	Deputy Chairman