SECTION 21, EMPLOYMENT EQUALITY ACT, 1977
UNIVERSITY COLLEGE DUBLIN
(REPRESENTED BY JOHN J. MC DONALD & CO, SOLICITORS)
- AND -
PROFESSOR JAMES MC KERNAN
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal against Equality Officer's Recommendation DEC-E2001-026.
2. The dispute concerns a claim by the worker that University College Dublin (the University) discriminated against him in terms of section 2(a) and 2(b) of the Employment Equality Act, 1977, and in contravention of Section 3 of the Act when he was not shortlisted for the post of Professor in the University's Department of Education. (The full background to the case is contained in the Equality Officer's Recommendation). The post was advertised internationally in April 1999. There were 28 applicants for the job consisting of 20 males and 8 females. Six candidates were shortlisted, 4 male and 2 female. The worker was advised in October 1999, that he was not included on the shortlist. The worker believes that he was discriminated against in the shortlisting process on the basis of his gender and marital status. He referred his case to an Equality Officer for investigation, who found as follows: -
6.1 In view of the foregoing, I find that the claimant has failed to establish a prima facie case of direct discrimination on the gender ground in terms of Section 2(a) of Employment Equality Act, 1977, and in contravention of the provisions of Section 3 of the Act.
6.2 In view of the foregoing, I find that the claimant has failed to establish a prima facie case of direct discrimination on the marital status ground in terms of Section 2(b) of Employment Equality Act, 1977, and in contravention of the provisions of Section 3 of the Act.
The worker appealed the Equality Officer's recommendation to the Labour Court on the 18th of December, 2001.
The appellant also submitted a claim under the Employment Equality Act, 1998 to the Director of Equality Investigation on the following grounds of discrimination: -
•Nationality and national origins
The appellant sought leave to appeal his case under the 1998 Act. This Court is unable to hear an appeal under the 1998 Act, as the Equality Officer’s Recommendation DEC-E2001-026 makes no reference to the 1998 Act; consequently there is no recommendation to appeal.
3. 1. None of the people shortlisted, including the successful candidate, had the same Irish or international experience as the worker concerned (the worker supplied a list of his achievements to the Court).
2. The worker believes that the University has embarked on a course of favourable policy treatment to women. The University, which has been guilty of discriminating against women in the past, is now discriminating against men. A number of women who were passed over many times in the past have recently been promoted.
3. The worker does not believe that the shortlist Board was qualified to make its selection as none of its members was a Professor of Education. The assessment panel had no ranking mechanism for candidates who applied.
4. 1. The University is satisfied that all proper procedures were carefully applied by the assessment board which consisted of 6 internal members and 2 external members, all of whom were senior academic members of staff of their respective universities.
2. Many of the 28 applicants were distinguished scholars in the field of education.
3. The University was fair in its treatment/consideration of the worker's application. The procedures followed are to ensure that the most deserving candidate is selected. No candidate is excluded on the basis of any criteria other than those, which are directly relevant to the post.
4. The Equality Officer rejected the claim of discrimination the grounds of gender because the worker failed to provide any relevant proof.
A Labour Court hearing took place on the 24th of May, 2002. The following is the
Court's determination: ,
The Court explained firstly that the Equality Officer’s decision was made solely under the 1977 Employment Equality Act. Although the appellant had submitted additional points for alleged discrimination under the 1998 Employment Equality Act, these had not been considered in the Equality Officer’s decision, and hence cannot be taken into account in this appeal to the Labour Court.
Having considered the extensive submissions made by both parties at the hearing, the Court can well understand the appellant’s frustration at not being included among those selected for interview by the internal interview panel. The reasons given by the panel chairman for his non-selection could only have added to his incomprehension. The chairman’s letter allows the implication that he did not meet the requirements of the post in the areas of scholarship and research, and experience and knowledge of university administration and Irish education traditions and practice.
The Court accepts that it is not in a position to judge the value of the extensive scholarship submitted by this candidate. Equally it cannot evaluate academically his varied experience over the previous 21 years in the field of education in four Irish universities, including U.C.D., and in a U.S. university as Professor of Education. However, it would on the face of it seem surprising that such a background would not merit inclusion for interview for the position of Professor of Education at U.C.D. The appellant states that he was not the most qualified on the basis of scholarship (a primary criterion for the post), but claims superiority over others selected for interview.The curriculum vitae of some of those selected for interview would appear to bear this out.
The criteria of knowledge of, and experience in, Irish education are listed as important by the panel.However, while the appellant would seem to meet this ideal, it is noted that not all those selected for interview did so.
The University stated that the reason why the Assessment Board, including internal and external members, did not shortlist the appellant was because he did not meet the criteria, which were based on his scholarship and research record, experience of University administration, knowledge of the Institutions, traditions and practices of education in Ireland and evidence of appropriate management and leadership skills.
The University considered the criteria to be essential for the employment, and there is no evidence that it was unreasonable in taking this position. The Court is satisfied that the requirements laid down by the University were essential for the position of Professor of Education and the question of the proportion of one sex or the other who could comply with them does not arise.
The University asserted to the Court that the reason for his non-selection was, in fact, based on their overall assessment related to the mix of criteria established for the post, and not on any single one. This assertion, however, was not referred to in the subsequent letter to the appellant from the panel chairman.
Against this background, the failure of the panel members to make any record of the basis of their decisions for each applicant for this very senior post is regrettable. The defendants in this case have stated to the Court that the criteria for selection were ‘borne in mind’ in discussion of the candidates. Such total lack of transparency has left the panel open to the criticism of personal bias in selection of interviewees.
The appellant criticised the make-up of the panel, its appropriateness for the task, and the lack of a Professor of Education among the internal panel members. Whether valid or not, this does not seem to bear on the question of bias on sex grounds.
The Court is also concerned that the panel chairman did not consult with the external assessors regarding the shortlist selection, as required under the Guidelines for the Board of Assessors. The two external assessors were supplied with all 28 applications along with the shortlist and were asked to give their opinion. They had the right to add candidates to the shortlist if they considered it appropriate. The Court notes that one external assessor responded that he did not wish to add to the list, with the possible exception of the appellant. In the opinion of the Court, the Administration Office should have brought such a qualification to the attention of the panel. The Administration Office did not view this comment as altering the shortlist as previously selected by the panel. The Court views this as a serious flaw in the process.
The appellant has brought his case on the basis of discrimination against him by reason of sex and marital status, in accordance with the provisions of the Employment Equality 1977 Act. The burden of proof with which he must comply is that laid down in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001-S.I. Number 337 of 2001. These regulations state at paragraph 3 (1) as follows:-
Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that there has been a direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.
While a number of shortcomings have been identified by the appellant in the selection process, the appellant has not been able to establish any single fact from which an inference might be drawn that he has been discriminated against on the grounds of his sex or marital status.
The appellant has asserted that over the last few years there has been a culture of positive discrimination in favour of female candidates, which the University has denied.The Court has examined the records of recent senior and professorial appointments in the University, and the breakdown of the candidate pool from which they were made.The Court is satisfied that these records do not indicate such a bias.
In addition, the short list for the position for which the appellant applied contained 4 male candidates and 2 female candidates.The Court is of the view that this does not show bias towards female candidates. The Court also notes that all previous incumbents of the position were males.
On the question of prejudice because of marital status, which the University again emphatically denies, the appellant gives as evidence the status of prior holders of the chair in question, and his belief that a culture exists in the University which would militate against his particular situation. The Court finds no basis on which to give credence to these claims. One of the previous holders of the position was a married male, while all others were priests.
It is not for this Court to substitute its own views as to whether the appellant was a suitable candidate for the position. It is for the appellant to establish facts from which it may be presumed that the decision was reached on the basis of discrimination against the appellant on the grounds of his sex or marital status and this the appellant has failed to do.
In conclusion, the Court does not believe that the appellant suffered discrimination by reason of his sex or marital status, contrary to the provisions of the 1977 Act. The Court, therefore, upholds the findings of the Equality Officer
Signed on behalf of the Labour Court
19th August, 2002______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.