(represented by Mr Adrian Twomey, Doyle Solicitors)
(represented by Mr Tom Mallon, BL, instructed by John O’Dwyer, Arthur Cox Solicitors)
The case concerns a claim by Dr Emil Prodanov that Dublin City University discriminated against him on the grounds of gender and race contrary to Sections 6(2)(a) and 6(2)(h) of the Employment Equality Acts 1998 to 2008, in access to employment pursuant to S. 8(1)(a), conditions of employment pursuant to S. 8(1)(b), and promotion pursuant to S. 8(1)(d) of the Acts. The complainant also alleges victimisatory dismissal contrary to S. 74(2) of the Acts, when he complained about his alleged treatment.
The complainant submits that he was discriminated against on grounds of gender and race when the respondent did not appoint him to positions it filled in July 2005, and when his request for a permanent work contract, instead of a fixed-term contract, was refused. He further submits that the non-renewal of his fixed term contract after he complained about the events outlined above to a human resource manager of the respondent, amounts to victimisatory dismissal.
The respondent submits that the organisation is committed to non-discrimination in all areas of employment and that the complainant fails to establish a prima facie case of discrimination.
The complainant was advised by letter dated 27 July 2005 that he had not been successful in his application, and referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 10 January 2006. On 10 May 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, I began my investigation. A submission was received from the complainant on 16 August 2007. A submission was received from the respondent on 23 October 2007. As required by Section 79(1) and as part of my investigation, I proceeded to hold a joint hearing of the case on 11 February 2008. A number of issues emerged at the Hearing which required further clarification and gave rise to correspondence between the Equality Officer and the parties. This process concluded on 15 September, 2008.
Summary of the Complainant’s Written Submission
The complainant submits that he is an Irish citizen of Bulgarian extraction, and a physicist with a PhD in Theoretical Physics from Trinity College, Dublin. In 2001, he took up a three-year fixed term position with the respondent, which ran from 22 September 2001 to 21 September 2004. He then accepted a further fixed-term contract for one year from 22 September 2004 to 21 September 2005.
During his time at DCU, he made a very significant contribution to the organisation, including nomination for the President’s award in 2003; regular publications in peer-reviewed journals and laying the groundwork for a very successful BSc degree programme in physics with astronomy.
Toward the end of the 2004/5 academic year, the complainant sought an extension of his employment with DCU, and was advised by Ms A. from the respondent’s HR Department that two posts in the School of Physical Sciences were about to be advertised: A permanent position as lecturer in Physics and a three-year fixed term contract as lecturer in observational astronomy. The complainant submits that Ms A told him that there would be “no point” for him to apply for the fixed-term position, as the university, if it appointed him, would be in breach of the Protection of Employees (Fixed Term Work) Act of 2003.
The complainant became upset and asked Ms A whether the university intended to dismiss him. Ms A told him his contract would expire. The complainant further submits that Ms A told him that for reasons of “language and cultural differences”, he could not distinguish between an expiring contract and the notion of dismissal.
The complainant applied for both positions. Ms A was a member of the interview panel for both positions. Two weeks later, on 27 July 2005 , the complainant was advised that his applications had been unsuccessful.
The complainant submits that the successful candidates were both women. The permanent lecturer position was awarded to Dr B, who was Irish, and the temporary position was awarded to Dr. D., who was Italian.
The complainant points out that Dr B had been awarded a two-year DCU fellowship just prior to the interviews, which is usually only awarded to DCU employees and contends that this was an indicator of an expectation on part of the respondent that Dr B would be appointed to the permanent lecturer position. The complainant further submits that Dr B told him and a colleague the names of the other candidates on the interview panel, before her own appointment was confirmed. The complainant contends that this is further evidence that Dr B was an “insider candidate”. The complainant further submits that he was placed last on the panel for each position, which he submits is not commensurate with his academic achievements.
With regard to the appointment of Dr D. to the temporary lectureship in observational astronomy, the complainant submits that his complaint is not a general one of discrimination on grounds of race or national origin, but discrimination that rests in particular on his Eastern European origins and former Bulgarian nationality.
Summary of the Respondent’s Written Submission
The respondent submits that the complainant does not establish a prima facie case on the grounds of gender or race that is sufficient to shift the burden of proof to the respondent. It further submits that it operates a non-discriminatory recruitment and selection policy at all times, and that it has not discriminated against the respondent. It submits that the complainant’s claim is based on subjective speculation on the part of the complainant.
The respondent submits that there were eight short listed applications for the permanent lecturer position in Physics, and two short listed applications for the temporary lecturer position in Observational Astronomy.
The respondent submits that all candidates were assessed in the areas of teaching, research and interview performance by an interview panel of five internal and one external interviewer, of which four were male and two were female. The presentations of all candidates were assessed by a panel of five internal and two external interviewers, four of whom were male and three were female. The respondent submits that neither the complainant, nor any other candidate, raised any objection to any part of the interview and presentation process.
With regard to the complainant’s conversation with the respondent’s Human Resource officer, Ms A (see para 3.4above), the respondent submits that the complainant wished to raise a number of issues with Ms A where he felt he had been unfairly treated by the respondent, and was in an agitated state. The respondent submits that he spoke in a rapid and disjointed fashion, and that Ms A had difficulties following him. The respondent submits that Ms A asked the complainant to slow his speech so that she could get a clear understanding of his concerns. The respondent denies that Ms A made any comment regarding cultural differences. The respondent admits that Ms A referred to linguistic differences between herself and the complainant, but insists that Ms A did not in any way intend to behave discriminatorily towards the complainant, but rather, that she tried to fully understand what the complainant was saying to her at the meeting.
The respondent denies that Ms A was at any stage prejudiced against the complainant on ground of his gender or race or specifically, his Bulgarian origins.
Conclusions of the Equality Officer
The issues for decision in this case are:
(a) Was the complainant discriminated against on the grounds of his gender and race with regard to access of employment contrary to S. 8(1)(a) of the Acts in the appointment processes for the permanent position of Lecturer in Physics and temporary lecturer position in Observational Astronomy?
(b) Does the non-renewal of the complainant’s fixed-term contract with the respondent amount to victimisatory dismissal pursuant to S. 74(2) of the Acts?
In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
I first turn to the position of permanent lecturer in Physics to which an Irish female candidate, Dr. B., was appointed. The advertisement for the position stated that “applicants must hold an honours degree and preferably a PhD. An established track record of research in one or more of the current research areas of the School and a proven commitment to physics teaching/course development is desirable.”
Professor C., the Head of the Schoolof Physics, stated in oral evidence that from the perspective of the respondent, the lectureship was broad-based. The respondent was looking for someone who would do lab management in addition to student recruitment, retention and outreach. In terms of research, the post was not designated to a specific research area – the successful candidate only needed to be aligned with one of the research area in the school.
Eight candidates were short listed for the position. Five of these were male and three were female. Three were Irish nationals, including the complainant, and five were non-nationals, being candidates from Sweden, Germany, Italy and the US. All candidates had obtained doctoral degrees at the time of their application.
The respondent further submitted that in science disciplines, the research of a given candidate would normally be determined by the amount of articles that candidate has published in peer-reviewed journals. Based on that criterion, all short listed candidates appear to have been highly qualified as researchers in the field of Physics. It would be difficult for a layperson to establish a significant difference in their accomplishments in this area.
Professor C., in oral evidence, further explained the decision making process of the interview board in detail. He stated that after the interviews concluded, the interview board first determined which candidates were deemed appointable, and that they were then ranked in order, following a wide-ranging discussion that covered their teaching, research, administration experience, recruitment and retention of students, outreach and public engagement. He further stated that marks for these competencies were not set in advance. There are no marking sheets for the candidates’ competencies as evidenced in their CV’s; however, marking sheets for the candidates’ performance in their teaching presentations before the interview board were submitted in evidence to the Tribunal. Professor C. stated that the individual candidate scores from each member of the interview board were aggregated, and that a consensus decision was then sought. He further explained that in case no consensus could be reached, the successful candidate would have been appointed by majority vote. Professor C. stated that the decision to appoint Dr. B. was unanimous based on her superior teaching credentials.
I note in this context that the didactics of physics were the successful candidate’s actual field of research, and that a lot of her practical work in the employment of the respondent was also dedicated to the improvement of teaching, as well as student outreach.
The respondent submitted the interview assessment forms of the shortlisted candidates in evidence to the Tribunal. On these forms, candidates were assessed against five general criteria: Education and Training, Work Experience, Interpersonal Skills, Interest/Motivation and General.
Each candidate was then further assessed against a detailed list of criteria relating to their teaching presentation before the interview board, these being: “Preparation”, “Knowledge of Subject”, “Reference to further reading and current publications”, “Presentation – factually accurate”, “Presentation – appropriate pace”, “Presentation – well presented”, “Presentation – stimulates thought and challenge”, “Presentation – relates easily to students”, “Good and wide use of visual aids and artefacts”, “Well prepared student handouts”, “Encourages a high range of involvement”, “Creates interest”, “Easily understood”, “Research experience”, “Relevance of current research”, “Future plans”, “Research potential”, “Evidence of team-work”, “Communication skills” and “Responsiveness”.
The successful candidate was rated as follows: “Education and Training: Satisfactory”; “Work Experience: Very good and suitable experience in teaching, outreach and research”; “Interpersonal skills: Very good”; “Interest/Motivation: Very highly motivated”; “General: An all-round excellent candidate”. On the marks for her teaching presentation, she scored 10 marks between “good” and “excellent”, and nine marks for “excellent”, of which three related to her teaching ability and six to her research.
The complainant was rated as follows: “Education and Training: Satisfactory”; “Work Experience: Satisfactory”; “Interpersonal skills: Generally satisfactory”; “Interest/Motivation: Good”; “General: Satisfactory candidate”. He scored 19 marks between “good” and “excellent” and one mark for “good” for his teaching presentation.
Taking into account all of the evidence before me, I find that the facts in this case are very similar to the ones in the High Court case Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], which was an appeal on a point of law from a Labour Court determination, which in turn was an appeals decision from an Equality Officer determination under the Employment Equality Act, 1977. In that case, the complainant and the successful candidate, as well as other short listed candidates, were also quite close in qualifications and experience. Quirke J upheld the Labour Court’s finding that the differences were insufficient in terms of qualifications, experience and responsibility to justify a prima facie finding of discrimination, and noted that a
gender difference between the successful and unsuccessful applicants for a post or for promotion does not, by itself, require tribunals such as the Labour Court to look to an employer for an explanation of the type referred to in Zafar (supra). A primary finding of fact by such a tribunal of discrimination or of a significant difference between the qualifications of the candidate “together with” a gender difference may give rise to such a requirement.
Similarly, I find that in this case, the differences in qualification and experience between the complainant and the successful candidate are not significant enough for the complainant to establish a prima facie case of discrimination. In particular, I note that the respondent was within its rights to attach the importance it did to the successful candidate’s achievements in teaching, outreach, and research in the field of didactics of physics. I therefore find that complainant has not made out a prima facie case that he was discriminated against by the respondent in access to employment with regard to this particular position.
With regard to the competition for the fixed-term lecturer position in Observational Astronomy, the complainant sought to base his complaint on the race ground pursuant to S. 6(2)(h) of the Acts, on the alleged fact that particular prejudice exists within the respondent organisation against persons of Eastern European origins. He did so in the connection with the fact that the successful candidate, Dr. D., is an Italian national. When asked to elaborate, and give an account of his experiences, the complainant stated that in the course of a conversation about a conference that took place in Sofia, Bulgaria, a colleague allegedly said to him: “I should be paid to go to Bulgaria”. The complainant did not provide any other examples of the attitude he felt was prevalent in the respondent organisation. The complainant did not submit that any remarks about his national origin were made during the interview process for the position.
I do not find that this single alleged remark, as submitted by the complainant, constitutes a fact of sufficient significance to raise a prima facie case of discrimination of the complainant on grounds of race, in the competition for the position of lecturer in Observational Astronomy.
I therefore turn to the complainant’s case that he was also discriminated against in this competition on grounds of gender, since the successful appointee was a woman.
The Head of the School of Physics, Professor C. gave evidence on behalf of the respondent in this matter. He stated that there were three applications in total for the position, from Dr. D., from the complainant, and from a male Irish candidate who was deemed insufficiently qualified for the position to be shortlisted for interview. Professor C. stated that the decision to appoint Dr. D. for the position of lecturer in Observational Astronomy was a consensus decision by the interview board. The complainant was deemed appointable, but since Observational Astronomy was not his immediate area of specialisation, Dr. D. was seen as the better candidate for the position.
I find that Professor C.’s oral evidence in this matter is further supported by Dr. D.’s CV, which the respondent submitted to the Tribunal after the hearing. Even to a layperson, it is evident from Dr. D.’s degree, thesis subject and refereed publications, that she has pursued a career in astronomy ever since specialising in this field in her graduate studies in her homeland. I therefore accept the respondent’s evidence that Dr. D. was the better candidate for the position in Observational Astronomy, and find that the complainant has not made out a prima facie case on the ground of either race or gender, that he was discriminated against by the respondent in access to employment with regard to this particular position.
I now turn to the complainant’s case of victimisatory dismissal. It is the complainant’s contention that the non-renewal of his fixed term contract with the respondent amounts to victimisatory dismissal pursuant to S. 74(2) of the Acts. The relevant section defines victimisation as “dismissal or other adverse treatment of an employee by his or her employer that occurs as a reaction to –
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
The complainant’s fixed-term contract with the respondent expired on 21 September 2005, and was not renewed. He filed his complaint with the Tribunal on 10 January 2006. The complainant did not seek to aver any other facts which would fit into the provisions of the Acts as cited above, with regard to actions undertaken by the complainant which are defined in the Acts as being capable of provoking victimisatory treatment (including dismissal) on the part of an employer.
I find that while victimisation can occur even where there is no connection to the discriminatory grounds, it will have to occur in response to a complaint related to discrimination, the announcement of the intent to take proceedings, or the actual taking of proceedings. In the instant case, the non-renewal of the complainant’s contract occurred first, and his institution of proceedings with the Tribunal occurred more than three months later. There is no other evidence of a complaint having been made by the complainant, or an announcement of his intent to bring proceedings before the Tribunal, prior to the non-renewal of his contract.
Accordingly, I find that the complainant has failed to establish a prima facie case that he was victimisatorily dismissed by the respondent contrary to S. 74(2) of the Acts.
Based on all of the foregoing, I find, in accordance with S. 79(6) of the Acts, that
(i) The respondent did not discriminate against the complainant, on the ground of race contrary to S. 6(2)(h) of the Acts, in access to employment pursuant to S. 8(1)(a) of the Acts with regard to the appointment for either the permanent lecturer position in Physics or the temporary lecturer position in Observational Astronomy in the respondent organisation and
(ii) The respondent did not victimisatorily dismiss the complainant contrary to S. 74(2) of the Acts.
10 December 2008