The Equality Tribunal
3 Clonmel Street
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
Employment Equality Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
University College Dublin
(Represented by IBEC)
File No. EE/2008/225
Date of Issue: 11 March 2011
File reference: EE/2008/225 - DEC-E2011-050
Employment Equality Acts - Discriminatory treatment - Promotion/re-grading- Age - Prima Facie Case
1. Dispute and delegation
1.1 This dispute concerns a claim by Dr. John O'Connell (hereafter "the complainant") that he was subjected to discriminatory treatment in relation to promotion/re-grading by University College Dublin (hereafter "the respondent") on the grounds of his age. The complainant's application for Associate Professor was turned down during the 2007 round of promotions.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 14 April 2008 under the Employment Equality Acts. On 4 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 31 January 2011.
2. Case for the complainant
2.1. The complainant joined the respondent as an Assistant Lecturer in the Department of Applied Agricultural Economics in 1970. In 1990, the complainant was promoted to Senior Lecturer. The complainant stated that the changes enacted by the respondent in relation to its internal promotions process in 2004 meant that he could not achieve such a promotion because he asserts that by the time the changes were made the complainant was too old to re-orient his research sufficiently to meet the changed conditions. This requirement to completely change his research and research profile constituted the complainant's claim of age discrimination.
2.2. The complainant submitted that when he started working for the respondent he was told that if he wanted to get a promotion he was required to have a Ph.D. The complainant duly did so and stated that if he had been given other instructions he would have followed them. The Department of Applied Agricultural Economics underwent a number of name changes before it was subsumed into the School of Agriculture, Food Science and Veterinary Medicine in recent years. Despite these changes the ethos in the Department/School always remained an applied one predominantly dealing with issues and problems pertinent to the Irish agricultural and food industry.
2.3. The promotional guidelines that were changed and made explicit by the respondent in or around 2004 immediately and seriously disadvantaged the complainant. The guidelines for the post of Associate Professor stated that the main criteria were that a candidate should have an international profile to his/her research. The complainant's academic work had always been more focused on national rather than international research. The very fact that he had embraced the Department's ethos from the beginning, studying and researching applied agricultural economics in Ireland had disadvantaged him from seeking promotion. The complainant had been promoted twice since he started working with the respondent and maintained that as his work had qualified him for these promotions it ought to have reasonably qualified him for an additional promotion given that he had continued with his work for an additional 14-17 years (in 2004 and 2007 respectively). The complainant contents that by the time that the international dimension for promotion was made explicit he was 60 years of age with only 5 years left before he was obliged to retire. To deny the complainant promotion on the grounds of the new criteria discriminated against the complainant and denied him natural justice.
2.4. In relation to the respondent's submission that a classmate of the complainant was promoted to Associate Professor. The complainant accepted that this is correct but pointed out that the classmate worked in a technical/science area while he worked in an area with a focus which very much applied to Irish conditions with the difficulties for publishing in international publications.
2.5. The complainant also maintained that the respondent, who uses external assessors to support an application for the promotions, did not accept the unanimous verdicts made by them about the complainant's suitability for promotion. The complainant does not accept that previous promotions were not quality driven.
2.6. The complainant also objected to the fact that he was assessed in relation to his success in obtaining funding for the department. He was hired as an academic not a fund riser and this is another aspect introduced surreptitiously towards the latter stage of the complainant's career.
3. Case for the respondent
3.1.The respondent denies that the changes in its promotion criteria in any way disadvantaged any person working in the organisation but have helped many get promotions many years ahead of what was possible under the previous system. The criteria for assessment in accordance with international standards, has remained the same and includes Research, Teaching and Contribution. The promotional process was developed and refined operational experience within the University and in line with international best practice. It was submitted that it is not in any way ageist in its construction.
3.2. A classmate of the complainant was promoted to Associate Professor in 2006 which is direct evidence that age discrimination is not a factor in the promotional assessment process.
3.3. It was submitted that the changes to the promotional process within the respondent organisation enacted since 2004 have ensured far greater opportunity for promotion to Senior Lecturer, Associate Professor and Professor than that existing before the current system when promotions were quota driven, rather than quality driven. This means that the system now allows for the promotion of all persons who meet a predetermined standard unlike the previous competitive or quota based system that limited the number of promotions possible in a given round.
3.4. The promotions process also includes an appeals mechanism that the complainant chose not to avail of in 2007. It was submitted that the complainant was not promoted to Associate Professor because his publication record did not meet the required bar for publications concerning his work. It is common to use a journal impact factor and citation index to assess the quality of publications. It was submitted that the difficulty the Promotions Board and the external assessors had with assessing the complainant's record for publications post 1990 was the fact that his publications did not appear in such recognised journals and made the assessment of the standard of research and publications impossible. Furthermore, in relation to specialty areas, the Promotions Board made adjustments to said citation criteria in line with the speciality in question as it is clear that certain science areas, for example, will by their vary nature have a higher citation index than other specialty areas.
3.5. The complainant first applied for Associate Professor in 1998. He was advised by the then President in letter a letter dated 30 April 1998 that his application had been unsuccessful. He was also informed that the Promotions Board was putting in place an arrangement for unsuccessful candidates to obtain advice on future applications. The complainant applied for Associate Professor also in 1999, 2003, 2006 and 2007. Each time he was advised in writing of the outcome of his application and informed that advice on future applications/feedback was available to him.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' (Mitchell v Southern Health Board  ELR 201) before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters (EDA/0917) where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
4.2. The complainant accepted that a contemporary of his had been promoted to Associate Professor under the same criteria that he contended discriminated against him on the ground of age. This fact means that the criteria used and applied by the respondent cannot be deemed to be essentially directly discriminatory on the ground of age.
4.3. The complainant accepted that the changes enacted by the respondent in 2004 have ensured far greater transparency than what went on before and has been of greater benefit to younger academics. However, the explicit nature of the international element disadvantaged the complainant in his view as he had spent most of his career doing work applied to Irish conditions with the approval and endorsement of the respondent. The complainant maintained that by pursuing a career in his chosen discipline he was indirectly discriminated against on the ground of age in that the new international requirement was much harder for him to satisfy given the nature of his work. The respondent submitted that the international recognition does not mean that a person must carry out work with an international dimension but that the work must be published and endorsed by internationally peer reviewed journals. This is, for example, the case with academics with specialisation in areas such as Irish literature and history. In relation to the claim that smaller departments were disadvantaged by this approach, the respondent submitted that staff from small departments in the complainant's Faculty were promoted to Associate Professor and Professor during the same time frame.
4.4. Having heard the facts of this case it is clear that the complainant's complainant is about the fact that the respondent did not regard his publication history since 1990 as having the relevant merit. I note that the complainant, prior to his promotion in 1990, had published in international peer reviewed journals and that these publications relate to Irish work. I note that the complainant submitted that it was harder to have such work published and referred to a letter that he had received from one such publication. This letter clearly sets out that the article that the complainant had submitted would not be published because a number of articles on the same issue had recently been published in it. It is clear however that such applied Irish work can and has been published in said journals. I do not accept that the respondent's requirement that a successful candidate must have a level of publications in international peer reviewed journals is a new development or one that can be viewed as being discriminatory on the ground of age. Such a requirement does not mean that the work must be carried out in an international context. It is clear that while the respondent has implemented and published a number of policy documents in relation to the promotion process in recent years I have found no significant shift in relation to the criteria required for an internal promotion from which an inference of age discrimination can be drawn.
4.5. I accept that the respondent and other universities for that matter now must compete for funding. I also accept that this is a recently new development. However, I am satisfied that such a requirement is a reasonable one for the respondent institution and have been shown no evidence to support an argument that the manner in which this requirement has been applied in the complainant's case has had any discriminatory effect on the age ground.
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has not established a prima facie case of discrimination on the age ground. Therefore, the case fails.
11 March 2011