1.1 This dispute concerns a claim by Mr Patrick Kelly that he was treated in a discriminatory manner by the respondent, contrary to Section 7, in terms of Section 3(1)(a) and 3(2)(a) of the Equal Status Act 2000. The complainant referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director then delegated the case to me, Hugh O'Neill, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
2.1 In December 2001 Mr Patrick Kelly applied to enter a Masters in Social Science (Social Worker) degree course at University College Dublin "the University". He was called for interview in February 2002. 93 candidates were interviewed, 87 female and six male. After the interview and a selection process the top 50 candidates, three of whom were male and two of whom were placed first and second were offered immediate places on the course. A further 24 candidates including the two other males and Mr Kelly were placed on a waiting list. Mr Kelly was placed 65th overall. The core of Mr Kelly's complaint is that he was discriminated against at interview because the University had an inherent gender bias against men when selecting people for its Social Science Courses and that bias carried over into the conduct of the interview, the marks he was awarded, the manner in which he was treated at the subsequent selection meeting, and the manner in which he was treated when he applied for information in relation to the conduct of the selection process.
2.2 In his complaint filed with the tribunal in March 2002 Mr Kelly alleged gender discrimination in the following respects:
1. In a course for which the overwhelming number of applicants were women, no demonstrable effort was made to address the gross under-representation of men;
2. At the time of his interview for a place on the course he suffered hostility bias and resentment due to his gender;
3. There was a failure on the part of the relevant authorities at The University to demonstrate adherence to the principles of equal opportunities and positive discrimination, constituting a breach of European Union Law, as interpreted by the European Court of Justice;
4. Because of his gender he was not treated fairly at the time of his interview for the course and was the victim of prejudice.
2.3 In correspondence over the ensuing years, Mr Kelly expanded on these grounds and subsequently filed a 12 page submission which he contended fully set out his case. A copy of this submission is contained at appendix A. of this decision All the points raised by Mr Kelly in this submission have been fully considered when arriving at this decision. In reply to Mr Kelly's submission, The University filed their own submission a copy of which is contained at appendix B of this decision.
3. Preliminary issue
3.1 Mr Kelly brought his complaint under Section 7 (2) of the Equal Status Act 2000 ( the Act).
3.2 Section 7 (2) states inter alia:
"An educational establishment shall not discriminate in relation to -
The admission or the terms or conditions of admission of a person as a student to the establishment:"
3.2 Section 7 (1) includes a university in it's definition of an educational establishment.
3.3 The University submitted that the claim should properly have been brought under section 12 (1) of the Employment Equality act 1998 which states:
"Subject to subsection (7) any person, including an educational or training body, who offers a course of vocational training shall not, in respect of any such course offered to persons over the maximum age at which those persons are statutorily obliged to attend school discriminate against a person (whether at the request of an employer, a trade union or a group of employers or trade unions are otherwise) -
(a) in the terms on which any such course or related facility is offered:
(b) by refusing or omitting to afford access to any such course or facility or:
(c) in the manner in which any such course or facility is provided.
(2) In this section "vocational training" means any system of instruction which enables a person being instructed to acquire, maintain, bring up to date or perfect the knowledge or technical capacity required for the carrying on of an occupational activity and which may be considered as exclusively concerned with training for such an activity.
3.4 The University submitted that the Masters degree in Social Work was in fact a vocational training course within the meaning of Section 12 of the 1998 act, that Mr. Kelly should have brought his complaint under that Act, and therefore his complaint failed at first instance.
4.1 The provisions of Section 7 of the Act are quite clear. They state that a University should not discriminate in relation to the admission or the terms and conditions of admission of a person as a student.
4.2 Mr Kelly's claim is that he was discriminated against in relation to his admission or the terms and or conditions of his admission as a student. It may be that he might have brought an alternative claim under section 12 of the 1998 act, but his claim falls squarely within the bounds of Section 7 of the Act and is therefore properly before the tribunal.
4.3 I would add that having listened to the evidence, and particularly the evidence of Dr Richardson to the effect that the Masters degree course consisted of 50% academic and 50% practical work, I have formed the view that the masters degree course did not come within the definition of a course of vocational training as defined in Section 12 of the 1998 act as it was not exclusively concerned with perfecting the knowledge or technical capacity to carry on an occupational activity.
5. Mr Kelly's complaint
5.1 In his submission Mr Kelly stated that his treatment must not be looked at in isolation but must be looked at in the overall context of an attitude towards men in relation to their admission to Social Science courses in The University.
5.2 Mr Kelly submitted that social work was an occupation which was segregated in that it was performed by one particular gender. He quoted from a report published by the Equal Opportunities Commission in England entitled Occupational Segregation, Gender Gaps and Skills Gaps (Miller L and Ors 2004). This report outlined a number of reasons as to why there might be occupational segregation by employers. One explanation offered was that:
"Occupational segregation derived from the belief held by employers that differences exist between the sexes that make one sex less suitable for employment. The suggestion is that because engineers as a group, for example, remain predominantly male, and therefore most engineers are male, then employers and other individuals believed that women must therefore be less suited to engineering".
5.3 Mr Kelly contended that if one replaced the words employer with university one could see that there might be an inherent bias against a particular gender in any course.
5.4 Mr Kelly further contended that The University did not abide by the principles underpinning fair admissions as published by the Higher Education Steering Group in its final report; Fair Admissions to Higher Education: Recommendations for Good Practice. In that report, the group stated that universities and colleges should consistently and efficiently provide to applicants for courses the following:
"Detailed criteria for admission to courses, with an explanation of the admission process. They should indicate the likely weight given to prior academic achievement and potential demonstrated by other means, how applicants may demonstrate potential and relevant capability, and whether such potential and relevant capability would be considered on top of a set level of examination results or as a means of obtaining credit alongside a flexible level of examination results."
5.5 Mr Kelly submitted that no such information was provided to any applicants for the Masters course. This lack of transparency was on the face of it evidence of a gender bias.
5.6 In his specific case, Mr Kelly submitted that in the selection interview that the marks given him by the two people who interviewed him, Professor Kiely and Ms Purcell, showed further evidence of bias. He attached a copy of the marking sheet which was entitled selection interview guide.
5.7 He submitted that in section C of the guide a maximum of 34 points were available. He was awarded 11 points. In section D he was given six points out of a possible 10. He stated that this showed that the interviewers were biased against him as, in order to be offered a place on the course ab initio, candidates had to obtain 50% of the available marks in these two sections.
5.8 Mr Kelly stated that of the 9 subsections in the Guide which carried assessment categories ranging from Excellent to Poor, he was rated as very good in 1, good in 4, Fair in 2 and poor in 2. He stated that in section b the interviewers left the subsection entitled "placement experience" blank. This deprived him of six points and was an intentional omission.
5.9 Mr Kelly contended that at the selection meeting on March 7th 2002 which followed the interview process, the only documentation available was the score sheet for each candidate interviewed together with a summary matrix of points. He stated that if his application form and CV had been available for examination it would have clearly shown that he was eminently qualified for a place in the course. This he contended was further evidence of discrimination against him as a man.
5.10 Mr Kelly further contended that Professor Clancy's extremely terse reply to his formal complaint showed further evidence of a bias against him.
5.11 The reply consisted of two handwritten sentences:
(A) "We deny this claim".
(B) "All applicants are treated in exactly the same way"
5.12 Subsequently, a number of candidates who had been successful at first instance decided not to take up the offer of a place and Mr Kelly was offered a place on the course on August the 19th. However, he refused to accept the place, as it was his firm opinion that the offer had only been made for the purposes of either buying him off or sabotaging his complaint to the office of the Director of Equality Investigations.
5.13 Mr Kelly had in the interim been offered a place in an equivalent postgraduate social work course at Trinity College. In the five categories for marking in that interview Mr Kelly had scored outstanding marks. This he submitted was further evidence that there was a bias against him because of his gender in relation to his application for a place on the University's course. Mr Kelly stated that he was more qualified than the least qualified female applicant who was initially offered a place on the course.
5.14 Mr Kelly further submitted that his treatment, when attempting to obtain information under the Freedom of Information Act was evidence of a bias on behalf of the University against him.
5.15 Finally Mr Kelly submitted that only 5.6% of the applicants interviewed for the course were men and that only three of the six men considered eligible were offered places. This represented 2.8% of the applicants interviewed.
5.16 In his direct evidence, Mr Kelly stated that the submission contained at appendix A was his entire case against the University. He stated that he was not given marks for his relevant paid experience and that this was due to his gender. He stated that the very considerable difference between the marks he received when applying to Trinity College and the marks he received when applying to the University could only be described as due to his gender. He said that his interview was conducted in a hostile, intimidating and aggressive manner . He stated that the manner of questioning was hostile and questions were asked in an abrupt fashion. He was not allowed to elaborate on his answers and on more than one occasion he was told that he was not interesting. He stated that both interviewers derided his English degree. He said that the interviewers consulted privately, whispered to each other, became physically close to him in an invasive way and that there was hostility in their gestures. Mr Kelly stated that he knew on leaving the interview they would not offer him a place.
5.17 He stated that one in 10 social workers are men. The University's obligation was to promote gender equality among students. He stated that the University did not try to encourage male applicants. He stated that the University at secondary school level and PLC course level should promote the profession and encourage male applications. He stated that the entire interview process was discriminatory. He stated that if the selection board had seen the entire documentation he had submitted they would have realised that the marks at his interview were flawed and would have offered him a place on the course.
5.18 In cross-examination when Mr Kelly was asked why he had got low marks he stated that was due to the way he was treated. He stated that social work was a segregated occupation, that 90% of the applicants for the University course were female and that in his case the law marks were due to gender discrimination. He confirmed that he had left the Masters Course in Trinity having brought a case for victimisation there and had now qualified as a teacher. When asked was he aware that the first two candidates on the scoring sheet were men he stated that was irrelevant as the interviewers were biased against him and while all the interviewers might not have possessed a discriminatory nature the two who interviewed him did. He stated again that both interviewers were aggressive towards him. He confirmed that of the 93 original applicants 87 were women and 6 were men. He was asked if he was aware that that all six male applicants were ultimately offered places on the course. Mr Kelly stated that the offer of the place to him was self-serving and a knee-jerk reaction to his lodging of a complaint with the tribunal.
5.19 Mr Kelly was shown a letter of the 27th of August to a female candidate offering her a place in the list. He stated that the fact that places eventually became available did not disprove discrimination against him.
5.20 Mr Kelly was asked if he was aware of the schools scheme run by the University in which they attended school to promote the course. He stated that he was not. He was asked if he was aware of open days held by the University. He stated that he was but that these promoted a variety of courses and could not be said to constitute positive discrimination on the part of the University.
5.21 Mr Kelly was asked whether he was aware that there was a Director of Access whose sole function was to promote the widest possible ingress of students into the University. He stated that he was but that in his view the Directors main function was to attract students from the lower income groups rather than to promote gender equality.
6 The University's Reply.
6.1 Dr Valerie Richardson, head of the School of Applied Social Sciences give evidence on behalf of the University. She was asked about the process for selecting students for the Masters degree. She stated that application forms had to be completed by the 10th of January, and that there was an initial screening of applications by her and one other person. 100 people applied, 2 were eliminated and 5 withdrew their applications. Interviews were offered to 93 people.
6.2 When asked how people could become aware of the course, she stated that the course was not advertised, but that anyone interested in social work would have done preparatory work in finding out how to become a social worker. The college calendar set out the requirements for the course and the college documentation indicated how to obtain an application form. Since 2003 application forms had been available online.
6.3 She stated that that the only criteria for being called for interview was having a second class honours grade in the applicant's primary degree. The degree must also have contained a module in which the candidate had studied social policy.
6.4 She stated that a number of people were contacted in order to set up the interview process and that it was decided that there would be two people interviewing each candidate, one a qualified social worker who had some experience in the University and the other a member of the academic staff. In Mr Kelly's case Professor Kiely, the Head of School and Ms Purcell a qualified social worker who had in the past also done interviews of this type were chosen to conduct the interview.
6.5 As the two interviewers were not available to give evidence, no evidence could be given as to the manner in which they arrived at their marking or the manner in which the interview was conducted.
6.6 Dr Richardson stated that she chaired the selection board meeting which took approximately 3 hours. The complete files of the interview candidates were in the room and each candidate would have been discussed by all selection board members present. No notes were taken or kept of these discussions. When asked if any of the marks were altered during the selection board meeting, Dr Richardson stated that if interviewers saw fit to award an excellent mark in any grade, this had to be approved by the selection board. She was not able to say whether any score had been altered at the selection meeting but accepted that Mr Kelly's sheet did not appear to have been changed.
6.7 The selection board offered the first 50 candidates with the highest points a place on the course and placed a further 24 candidates on a waiting list. In the gender breakdown of the first 50 candidates 3 were male. 2 of these were placed first and second on the course.
6.8 Every male candidate including Mr Kelly was finally offered a place on the Course. Each person on the waiting list was offered a place strictly in accordance with their position on the waiting list. If candidates had equal points they were chosen by random selection.
6.9 She stated that the University has been trying to encourage male graduates for many years to enter the professions in which there was a preponderance of female undergraduates. She stated that the proportion of male to female graduates in Social sciences had risen from 9.2% in 2002 to 16.9% in 2006. She stated that male applicants were encouraged to attend Open Days, that copious information was supplied to career guidance teachers, that social work was heavily promoted at Higher Options conferences and the end result seemed to be an increase in male applicants for Social Science courses. She stated that the University operated an equal opportunities policy which had been agreed with and approved by the Equality Authority. She referred to the universities Equal Employment Policy in 2002 and said that this equally applied to students. She stated that the policy had been latterly amended to make a specific reference to students.
6.10 In her cross-examination, when queried about the fact that the Professor Clancy had stated in his response to Mr. Kelly's Freedom of Information request that the only documentation available at the selection meeting was the score sheets and ranking list, whereas she had said that the applications and CV were available, she was unable to explain this discrepancy. She stated that in the main the Board referred to the score sheets and ranking lists but that the candidates c.v's were available if necessary. She could not remember whether they were consulted.
6.11 It also emerged during the cross-examination of Dr Richardson that Mr Kelly's own undergraduate course had a gender bias of 55% to 45% in favour of females and that after advertisement in the newspapers the gender balance in the course at Trinity for which Mr Kelly had successfully applied was the same as that in University College Dublin.
6.12 In his final statement Mr Kelly stated that the University's failure to positively promote the Social Science course both at schools level and at undergraduate level showed gender bias. He stated that inferences should be drawn in his favour from the response by Professor Clancy to the notification of the complaint and to the fact that the two interviewers were not available to be examined on their marking.
7 Burden Of Proof
7.1 It is the established practice of this tribunal in relation to the burden of proof in gender discrimination complaints under the Act to shift the burden of proof to the respondent where the complainant has established facts from which discrimination may be inferred
7.2 Under this procedure it is for the complainant in the first instance to establish as facts the assertions on which the complaint is based, and having thus established a prima facie case of discrimination, the burden of proof rests with the respondent to demonstrate that discrimination did not take place. It is well established that in cases such as this, direct evidence of discrimination is unlikely to be available and therefore the law of evidence must be adapted to place the probative burden on the respondent in appropriate circumstances. The position in this regard was set down by the Labour Court in Southern Health Board v Mitchell  ELR 201: -
"The complainant must prove on the balance of probabilities the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if those primary facts are regarded by the Court is being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."
7.3 The principle was again considered by the Labour Court in Citibank v Massinde Ntoko Determination No. EED045: Here the Court stated as follows:-
"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant's power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondents capacity of proof".
7.4 Accordingly, if certain facts are found to have been established by this tribunal and where those facts point to the possibility of discrimination on gender grounds, it is for the University to then supply an explanation. If no explanation is then put forward or if this Tribunal considers the explanation to be inadequate, it will be legitimate for this tribunal infer that the discrimination took place.
7.5 A complainant must show the following before any inferences can be drawn from the facts:
- that she/he is covered by the relevant discriminatory grounds
- that she/he has been subject to specific treatment,
- that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been, or would be treated.
7.6 I have listened carefully to the evidence and have studied Mr Kelly's wide ranging submission at length.
7.7 The core of Mr Kelly's case is that he was less favourably treated at interview than a woman in a similar position would have been and this was because the University was inherently biased against men in it's School of Social Sciences. As evidence for this proposition he put forward an alleged failure on the part of the University in not doing sufficient to ensure gender balance in those applying for their undergraduate social science courses. Beyond giving uncontroverted evidence, which I must accept, that the interviewers were rude and aggressive towards him he advanced no other evidence to show that their treatment of him at that time was based on his gender and that a female candidate for interview would have been treated in a different manner.
7.8 Where allegations of discriminatory remarks at interview are made, this Tribunal has found in the past that the failure of the respondent to have the interviewers available to give evidence at any subsequent hearing can allow the tribunal to find that the complainant has established facts from which discrimination might be inferred. In this case however, Mr Kelly has made no allegations that any discriminatory remarks were made at interview, rather he has stated that the attitude of the interviewers was hostile. I have accepted this evidence in its entirety but as I have stated the attitude of the interviewers towards him was not in my view based on his gender. Their absence at the hearing would not affect this finding.
7.9 Equally this tribunal has found in the past that a failure to keep notes in the selection process, especially if there are unexplained or unexplainable discrepancies in a candidates marks, can lead to the tribunal finding that there is an inference of discrimination. In this case however, the marking system for the initial interview was available and those marks were not changed in the selection process. Professor Richardson's evidence was that the candidates CV'S were available at the meeting but she cannot recollect them being reviewed. It therefore appears that Mr. Kelly was treated at the Selection board meeting no less favourably or more favourably than other candidate, and the universities failure to take notes in this particular case does not affect this particular finding.
7.10 He also seeks to rely on the responses by the University after his complaint was made as further evidence of discrimination. I can see no fact however from which it might be inferred that any of these responses were motivated by gender discrimination.
7.11 Mr Kelly also asked this Tribunal to find that the superior marks he obtained at his Trinity interview showed that the marks he received at the University interview were somehow imbued by a spirit of discrimination. In my view they merely show that he did an extremely good interview when applying for the course at Trinity. I am confirmed in this view by the fact that Trinity publicly advertised the course, and, after interview, the gender balance on that course was exactly the same as that in UCD.
7.12 Mr Kelly's submissions were wide ranging and thought provoking and he presented his case at hearing in a most able manner.
7.13 However for the reasons outlined above, I take the view that Mr. Kelly's case falls at the first hurdle and that he has not established facts from which discrimination must inferred.
7.14 For the purposes of clarity however I should state that even if I had accepted that Mr Kelly had established sufficient facts from which discrimination could have been inferred, having heard the evidence in it's totality, I have come to the view that the University would have discharged the onus of proof placed upon it.
7.15 I accept the evidence given by the University that it did all in it's power to ensure that it's social science course attracted a better gender balance. The fact that it did not have such a balance cannot be in my view be used as evidence of discrimination on the part of the University. Where the criteria for admission for a course are clearly set out and are themselves gender neutral, the mere fact that more females than males apply for the course cannot in itself be taken as indication of gender bias on the part of the person giving that course. Furthermore there is no obligation in law on the provider of any course to positively discriminate or indeed once the criteria are set and are clearly gender neutral to encourage persons of a particular gender to join that course. The provider of the course may of his or her own volition seek to redress a gender imbalance in the course provided that does not of itself cause discrimination, but a failure to do so could not be considered discriminatory.
7.16 In relation to Mr. Kelly's own case, the uncontroverted evidence is that 87 women and six men applied for the Masters Degree Course. Of the 50 initially offered a place, three were male and two of those were placed first and second. The 15 people placed on the waiting list included the remaining three males. All of these 15 were offered places prior to the end of August. Every male applicant for the degree course was, prior to it's commencement, offered a place on it. Mr. Kelly had in the meantime, been offered a similar course in Trinity College and therefore was in the happy position of being able to reject this offer.
I find that the complainant has failed to establish a prima facie case of discrimination on the gender ground. Therefore his claim must fail.
Dated this day of November 2006
Hugh O' Neill