THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 039
Mr Gerard P. Craughwell
(represented by TUI)
Dun Laoghaire VEC
(represented by IBEC)
File Reference: EE/2007/118
Date of Issue: 23rd March 2010
1.1. The case concerns a claim by Mr Gerard Craughwell that Dun Laoghaire VEC, discriminated against him on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in terms training, conditions of employment and access to promotion. Mr Craughwell also complains that the respondent victimised him contrary to S. 74(2) of the Acts.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 6 March 2007. A submission was received from the complainant on 31 July 2008. A submission was received from the respondent on 19 November 2008. On 15 July 2009, 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 my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 20 January 2010. Additional evidence was requested from the respondent on 18 January 2010 and received at the hearing of the complaint.
2. Summary of the Complainant's Written Submission
2.1. The complainant works at the grade of Assistant Principal in Dun Laoghaire Senior College (DSC). He submits that he was discriminated against by the respondent on the ground of his gender in his terms and conditions of employment, and in terms of access to promotion. In particular, he alleges that he and other male colleagues were excluded from management meetings for a period from 2004 to 2006, whereas female colleagues attended these meetings. He further alleges that he was denied training. He specifically complains that one female colleague was given the opportunity to train in specific fields, and that her teaching hours were significantly reduced to facilitate both her training and administrative experience. He asserts that his own teaching hours and the teaching hours of other women on the staff were not so reduced. He also specifically alleges that the female colleague received specialist training in the FETAC system in preparation for a future promotion. He asserts that this amounts to the "grooming" of this specific female colleague for a senior management position within DSC.
2.2. With regard to the competition for Deputy Principal of DSC, in which the specified female colleague was successful, the complainant asserts that he was significantly better qualified for the position than the successful applicant, and that his failure to succeed in the competition amounts to discrimination on the ground of his gender.
2.3. Finally, the complainant alleges that the respondent victimised him following the lodging of his complaint of discrimination with the Tribunal, by pressurising him to alter parts of his submission, excessive criticism and micromanagement of his current duties.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against, or victimising the complainant. In particular, the respondent denies that the complainant was excluded from management meetings, but asserts that the complainant chose not to attend these meetings. The respondent also denies that the specified female colleague received preferential treatment in terms of her teaching load, citing specific working conditions applying to that staff member, and further argues that since other female staff members were in the same position vis-à-vis her as the complainant was, the situation cannot be said to amount to discrimination on account of the complainant's gender. The respondent denies that the complainant was denied training opportunities, and states that the specified female staff member obtained the training on the FETAC system in her own time and on her own initiative.
3.2. With regard to the promotion competition to Deputy Principal in Dun Laoghaire Senior College, the respondent disputes that the complainant was more qualified than the successful candidate and asserts that on the contrary, the complainant was less qualified than her. It therefore disputes that the complainant was discriminated against the ground of his gender.
3.3. The respondent also denies victimising the complainant. It points out that some aspects of the complainant's victimisation are out of time pursuant to S. 77(5)(a) of the Acts. It nevertheless denies all allegations of victimisation of the complainant, and in particular points out that the alleged micromanagement of the complainant arose because the complainant failed to carry out a number of specific duties attached to his current position within the college.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against on the ground of gender within the meaning of the Acts; whether issues with regard to time limits pursuant to S. 77(5)(a) of the Acts arise that preclude me from investigating aspects of the complainant's case for victimisation and whether the complainant was victimised contrary to S. 74(2) of the Acts.
4.2. In evaluating the substantive evidence before me, I must also 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.
4.3. In terms of the complainant's complaint of discrimination of access to promotion, I follow the decision of the High Court in Mary Helen Davis v. Dublin Institute of Technology [1999 No. 493SpCt5], where Quirke J held 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 candidates "together with" a gender difference may give rise to such a requirement.
4.4. At the hearing, the complainant himself accepted that the successful candidate had higher academic qualifications than he had. However, he submitted that "academic qualifications are not everything", and argued that his prior business experience and contributions to the college should be taken into account when assessing his qualifications against the successful candidate's.
4.5. This is a valid argument for positions in the Further Education sector; however, on examination of the complainant's and the successful candidate's cv's, I do not find that a significant difference in qualifications arises in favour of the complainant, having regard to the totality of their academic and professional experience. I therefore find that complainant has not made out a prima facie case that he was discriminated against by the respondent in access to promotion with regard to this particular position.
4.6. The complainant further argues discrimination in training and conditions of employment. The background to this is that the same colleague who was ultimately successful in being appointed Deputy Principal, Ms. A., was on a substantially lower teaching load than the complainant and his colleagues. However, in his own evidence he submitted that Ms A.'s teaching hours were substantially lower than those of all other colleagues, including his female colleagues. I therefore find that the issue of less favourable treatment on the ground of gender does not arise, and the question of whether Ms A was preferentially treated, or whether her specific role necessitated this arrangement, as argued by the respondent, is moot.
4.7. With regard to the complainant's complaint about discrimination in access to training, it transpired at the hearing that this related to training availed of by Ms. A in 2004. There was no dispute between the parties about the year in which Ms A obtained her training. Since the complainant filed his complaint with the Tribunal in March 2007, I find that this part of his case is out of time pursuant to the provisions of S. 77(5) of the Acts, and that I therefore have no jurisdiction to investigate this issue.
4.8. The complainant also alleged that men were excluded from management meetings. The detailed evidence that emerged at the hearing shows that the staff heading up teaching departments had a weekly meeting with the then Principal, whereas staff who had additional corporate responsibilities, such as IT or Health and Safety, were not present at these meetings. At the material time, from 2004 to 2007, heads of teaching departments were all female, whereas heads of corporate departments were men. However, Mr. B., witness for the complainant, stated that when a male teacher substituted for the head of the business department, he was invited to those meetings. In addition, there was no dispute that the heads of corporate departments had unlimited one-to-one access to the Principal to discuss matters arising in their work, and that the current Principal abolished the organisational split between teaching and corporate heads in 2007.
4.9. From all of the above, I am satisfied that the matter complained of was a temporary management practice of the respondent's which happened to coincide with a split along gender lines among staff. I am further satisfied that no less favourable treatment for male staff resulted from this practice, given the undisputed evidence that they had as much individual time with the Principal as they needed to be supported in discharging their roles.
4.10. I now turn to the complainant's complaint of victimisation. Two distinct chains of events form the substance of Mr Craughwell's victimisation complaint: That the Principal of Dun Laoghaire Senior College allegedly requested that he alter parts of his submission to the Equality Tribunal; and that he was micromanaged in a victimisatory manner by both the Principal and the Deputy Principal (Ms. A), with regard to the production of certain documents in his role as Head of Learner Services.
4.11. In terms of the timeliness of either of these complaints, I note that S. 77(5) of the Acts provides that
"a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence."
4.12. Accordingly, I asked the complainant when the Principal had last requested that he alter part of his submission to the Tribunal. Mr Craughwell stated that this had happened on 11 November 2008. The complainant filed his complaint of victimisation on 21 July 2009. I therefore find that this particular part of the complainant's victimisation complaint has been brought outside the time limits prescribed by S. 77(5) of the Acts, and that no application for an extension of the time limits has been made prior to the hearing of the complaint.
4.13. I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
4.14. I now turn to Mr Craughwell's complaint that he was micromanaged in a victimisatory manner by both the current principal, and Ms A., the Deputy Principal, regarding the production of a number of documents that fell within his responsibilities as Head of Learner Services. Extensive email printouts were furnished by both sides as evidence of how these processes were managed. They were not in dispute between the parties. From a review of these emails, I am satisfied that the Principal did not micro-manage the complainant with regard to the production of the documents. The manner in which Ms A interacted with the complainant, from emails cited by the complainant and not disputed by the respondent, might be described as "micro-management". However, since there is no reference in the evidence adduced that links her behaviour to the complainant's case with the Tribunal, I am not satisfied that she acted in the manner she did in order to victimise the complainant. In fact, the evidence put before the Tribunal does not allow for the attribution of any particular motive on her part. Accordingly, I find there is insufficient evidence that the complainant has been victimised by Ms. A, and that this part of his complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that I have no jurisdiction to investigate parts of the complainant's complaints of discrimination and victimisation pursuant to the time limits set in S. 77(5) of the Acts; and that for those parts of the complaints that were brought in time pursuant to S. 77(5), the respondent did not discriminate against the complainant on the ground of gender pursuant to S. 8(1) of the Acts, and did not victimise the complainant pursuant to S. 74(2) of the Acts.
23 March 2010