THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Paul McNulty B.L. instructed by Kilfeather & Co., Solicitors)
(represented by John Brennan IBEC)
File Reference: EE/2009/275
Date of Issue: 28th May 2014
Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - 6(2(a),(c) & (g) –gender, family status, and disability ground, Section 8 – contract of employment, conditions of employment, Section 77(5)(a), (6) & (6A)– time limits for referring complaint, prima facie case.
1.1 This dispute involves a claim by Ms. Mary Dempsey hereinafter the complainant that she was discriminated against by the NUI Galway hereinafter the respondent on the gender, family status and disability grounds, in terms of section 6(1) & 6(2)(a)(c) and (g), contrary to section 8 of the Employment Equality Acts, 1998 and 2011 in relation to the complainant’s conditions of employment and a change in the title and terms of her contract of employment.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 30th April 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 12th June, 2012 to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision, and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from the complainant on the 13th October 2009, 7th December 2009 and the 12th of April 2010 and from the respondent on the 18th December 2009. A hearing on the complaint was held on the 28th of June 2012, 18th and 19th October 2012 and the final correspondence was received on the 16th April 2014...
2 Summary of the Complainant's case
2.1 The complainant was employed as a Temporary Teaching Appointment (TTA) in the Industrial Engineering Department of NUIG (one of 5 schools within the Engineering faculty now College of Engineering and Informatics, COEI) since 1994 on a series of rolling contracts. She graduated with an Engineering Degree from NUIG in 1991 and she went on to do a research masters in Engineering Science which she completed in 1993. At first she worked in private industry and was involved in the start up of an American engineering company in Galway, where she was employed as a product manager and she was also teaching on the MBA programme on a part-time basis on Saturday mornings in NUIG. Her area of expertise is operations logistics and operations research. Her former professor, and now Head of the Department (HOD), invited her to apply for the post of TTA, and following an interview with him she was offered the post. She had a contract for 10 months starting in September 1995 and she left her employment in the engineering company. She said that she set up a new course in logistics and operations in the Department of Industrial Engineering and this was a major choice for students from the Commerce faculty. She said that she also developed a Diploma in Purchasing Management in the Business school. A male TTA joined the Industrial Engineering Department around the same time she joined and she submits that he was treated much more favourably than she was. The complainant said that he was placed on a highest point on the increment scale when he was a TTA whereas when she became a full-time TTA she was placed on the lowest point. She raised this issue with the HOD and she maintains he made a comment to her that “he had a family to support” and “be happy with what you have got”. She said that this male colleague was facilitated throughout his career, his post was eventually advertised and he was successful in becoming a Junior Lecturer in or about 1999. He was also facilitated with 2 paid sabbaticals and uninterrupted periods for research purposes to do his PhD while she was not facilitated and was requested to do some of his lectures during his absence.
2.2 On the other hand the complainant said that she remained on rolling contracts for years and despite ongoing promises from the Head of Department of a junior lectureship post, the University never advertised the post she occupied. She had contracts of ten months duration for a number of years and then she had a series of eleven month contracts. She was effectively full –time but there was still a break in the contract, but from about 1999 onwards she had contracts without a break. She said that her role involved teaching both undergraduates and post graduates and research students and she also did a number of research projects under of the direction of the HOD. She also had 4 publications. She said that she had a very heavy teaching load in comparison to other staff. The metric for employing academic staff is based on 20 full-time equivalents numbers (FTE’s) per lecturer and up to 2003 the complainant said that because of her heavy teaching load she contributed 50 FTE credits per annum to the Department.
2.3 During 2001/2002 she said that her lecturing hours were increased to facilitate the above mentioned male lecturer to take a sabbatical. She went on maternity leave on the 17th of December 2001 and her baby was born on the 10th of January 2002. She was asked by the HOD Professor to carry out work during her maternity leave, including correcting examination scripts and presenting a lecture for another Professor who was also on a sabbatical. She said that she then applied for unpaid maternity leave, putting together a list of all the work she had done during her maternity leave and sought additional time off in lieu for from HR. In or around April 2002 while she was still on maternity leave she refused to do some work for the HOD and he made a comment that he did not know how the University would give her another contract in lieu of all the time she was taking off and that he had a Department to run. She believes this amounted to a threat not to renew her contract. The complainant contacted HR and she was granted the time off in lieu for carrying out this additional work during her maternity leave. However she believes that this informal complaint to HR seeking the time in lieu was a significant turning point in her career in the Industrial Engineering Department and had a negative impact on her professional standing.
2.4 The complainant said that she returned to work after her maternity leave in September 2002 and she found that there was a major shift in the focus of the University and research had become a priority. She said that she submitted a proposal and applied for research funding to the Millennium fund which was worth in the region of €10,000. Her request was turned because she was not a permanent employee. She said that the funding would have benefitted the research she was doing at that particular time. She raised the issue with Professor C who was on the committee who turned down her application and he said that he would look into the matter. Shortly afterwards she went on pregnancy related sick leave and she never got to finish her project because she never secured the necessary funding.
2.5 On the 26th of February 2003 she presented the new Head of Department (HOD) Professor A with a sick certificate in relation to her pregnancy. She said that she was asked to wait until her next visit to the doctor before she went on pregnancy related sick leave. She submits that Professor A said to her she could not go on sick leave because he had nobody to teach her subjects. Professor A then told her he had been in contact with HR and he understood that if he did not accept the medical certificate she could continue to teach her subjects. She said that she continued to work until the end of March and then she went on pregnancy related sick leave and her baby was born in early September 2003. During her sick leave she was asked to grade students and the work was delivered to her home. Very shortly after her baby was born she broke her leg. The condition which caused the injury to her leg was a pregnancy related condition. The complainant said that she was again asked to correct scripts because the person who replaced her was under a lot of pressure. The complainant said that she was afraid to refuse because of the nature of her contract. However she explained to Professor A that she was suffering from fatigue because of her broken leg. She then applied for unpaid maternity leave and following that she was certified unfit to return to work because of her continuing medical problems relating to her pregnancy. Her maternity leave finished in April 2004, and she was on paid sick leave due to the pregnancy related condition up until about October 2004, when she went off pay. She continued to supply medical certificates which affirmed that she was suffering from pregnancy related illness. She got a tumour on her back which required surgery which took place in the Summer of 2005 and she continued on sick leave from then until 1st of July 2006 when she returned to work. In July 2004 she informed HR that she was asked to work while on pregnancy sick leave in February and March 2003, and was again asked to correct scripts during her second period of maternity leave. She asked for time in lieu and she also applied for untaken annual leave. She again believes that the issue of being requested to work during sick/maternity leave and seeking time in lieu further impacted on her position within the Industrial Engineering Department.
2.6 In August 2003 the complainant received a contract which designated her as a Lecturer (Fixed Term) for the period 1st September 2003 to the 31st August 2004. This contract arose on foot of the adoption of a report of a working group established by the Academic Planning and Resource Committee (APRC). In May 2003, the APRC decided to renew her contract and she was given the title Lecturer and the University in its documentation renewing the contract stipulated that the complainant’s position related to an unfilled Junior Lectureship post and the contract should be renewed until 2004. She said that this was a very good contract to get at this time because her title was now Lecturer and it allowed her to be a member of the Faculty and to vote on issues at the College Meetings. As a TTA she said that she had the same duties as a permanent Lecturer but now the title gave her the same status and rights. She said that she could take a sabbatical and also apply for the Millennium funding and other funding for research. The University statutes gave her the same rights as a permanent lecturer and allowed her to progress in the academic field.
2.7 In or around July 2004 the complainant was in contact with HR in relation to her sick pay and she was informed that she was now entitled to a permanent contract under the Protection of Employees (Fixed Term Work) Act 2003. She wrote to the respondent on the 22nd July 2004 seeking information on her contract. She was informed by letter dated the 30th July 2004 that a letter had been sent to the Vice President in relation to the formalisation of her post. After hearing that the contract was going to be formalised as permanent, the complainant wrote to HR on the 8th of September 2004, the 11 and 18th of October seeking her permanent contract, but she was still not issued with a contract. On 31st January 2005 and on the advice of her consultant, she applied for unpaid leave of absence (a sabbatical) which she now believed she was entitled to, to facilitate her recovery from her broken leg and she got no response and she continued on sick leave.
2.8 She was called to a meeting by letter dated 3rd of February 2005 with the Director of HR in connection with her contract. She contacted her union and attended a meeting in the union office with the HR Manager where she was represented by SIPTU. She was told by HR that the University viewed her as being in a non-academic role and she was being offered a non-academic teaching contract. The complainant informed the HR Manager that she wanted her contract to reflect the title of Lecturer which she already had. She was not happy with the way the meeting went and she wrote a detailed letter to her union representative objecting to the contract and asking the union to pursue the matter. She set out her objections in that letter stating that the offer would now (a) classify her as a teacher, (b) teachers do not have research stipulated in their contract of employment (c) and she would no longer be recognised as an academic member of staff and therefore could not attend faculty meetings. She had another meeting with the Director of HR on the 28th of February 2005 and she got no satisfactory answers to her questions about the downgrading of her contract and conditions of employment from the Lecturer contract she already had. She said that she was no longer a member of the Faculty, there was no requirement to do research, she could not take a sabbatical for research purposes and her teaching hours were increased. She said that under the last number of TTA contract she held she was entitled to attend Faculty meetings and vote and when the post had been upgraded to the position of Lecturer (Fixed Term) it gave her the same rights as a permanent Lecturer.
2.9 The complainant said that she was issued with a new contract with no title; effectively it downgraded her from the position of Lecturer. She learned in a follow-up letter from HR Manager that her position was based on the post of Applied Language Teacher and the title of her post was Applied Teacher, however this was not stipulated in her contract. She said that this was a contract unique to her and no other lecturer in the Engineering Department or any other faculty of the University had such a contract despite having been told by HR that other employees had teacher contracts. She had a number of meetings with the HR Manager, but she was unable to change the terms of the contract being offered. She said that she signed this contract under duress, having learned from her union representative that, because of her sick leave the HR Manager would deem her contract to have been frustrated if she did not sign it. The complainant also said that she learned from her Consultant that he had been made aware that her job was under threat. She said that she was afraid that she would lose her job and this was the reason she signed the contract. This new contract was backdated to the 1st of January 2005 and it was fully signed and completed in July 2005. The complainant said that she got no response to her request for leave of absence for a year. She had attended a Consultant nominated by the University and following a medical report she was informed in August 2005 by HR that she would be granted sick leave for a further year.
2.10 The complainant returned to work after her sick leave on the 1st July 2006. She resumed her lecturing and administrative duties, but in relation to every other aspect of her job, she stated that her conditions of employment had been changed considerably. She said that she was told by the HOD, now Professor B, that she was no longer entitled to attend College Meetings and as she did not hold an academic position she was no longer a member of Faculty, therefore she was not required to carry out research nor walk in the academic parade, duties she had under her previous contract. She said that she was led to believe during the negotiations on her contract that other staff members were also given Teacher contracts but discovered on her return to work that she had an unique contract which no other Lecturer, either on Fixed Term contract or in a permanent position had. While the Department maintained the title of Lecturer for the purposes of teaching, she said that she was isolated by the nature of her new position from the Lecturers in the Department and her name was removed from documentation circulated to academic staff in the department and from the email list and telephone list for the Faculty. She said that the biggest issue for her was the elimination of the requirement to carry out research, the consequence of which she could not qualify for any funding for research. She also no longer qualified for a sabbatical; which denied her time to carry out research for the purposes of obtaining a PhD, which she had intended to do. She said that a male adjunct Lecturer took up a position in the Engineering Department but had more rights than her, including the right to attend Faculty meetings. She said that staff with Lecturer (Fixed Term) contracts had a higher status within the Department than she had. She said that she raised an issue in relation to one male Lecturer who had been on a fixed term contract and following this he was moved to a permanent post as a Researcher. The complainant said that a University Statute of 2001 stated that full-time TTAs could attend faculty meetings and could vote if they had at least 3 years experience in the post. While she was still a TTA she had attended such meetings and had a vote. However she said that she was now in a much more inferior position in terms of her status within the Department of Industrial Engineering than the status she formerly enjoyed in her earlier years as a TTA. In a letter of the 1st of October 2006, the complainant raised her grievances with the President of the University pointing out that she had been over 12 years lecturing experience in the University but as a result of the new teacher contract she found herself at a level which was considered less significant than temporary contract lecturers.
2.11 On the 22nd of November 2006, she wrote to the Registrar making the same complaints, but got no response to either letter. She also said that she had to write to the Registrar seeking further clarification on whether she was outside the boundaries of her contract in seeking funding for a project. However an email received from the HR Manager of the 25 of October 2006 stated that the post she occupied was non-academic and the Registrar in another email confirmed that the post she held was a Teacher post. She said that all of this disadvantaged her greatly in comparison to Lecturers and in relation to the lecturer post she had held prior to the new downgraded contract. She said that the position of teacher which she now held was not recognised in the HEA Academic Grades structure. She said that she raised the issues about her contract and her treatment internally with the Dean and he advised her to put her concerns in writing to HR which she did.
2.12 In October 2006, the complainant applied to transit on the pay scale from a teacher below the bar to a teacher above the bar as per the terms contained in the new contract. She said that Professor A reviewed her application and when she asked him to be her referee he declined, asking her who had allowed her to apply for promotion so soon after returning from sick leave. He then suggested that she would be better off applying to the GMIT. During this application she was interviewed by a panel of 5 people which included 3 people from the School of Engineering, Professors A, B, and the Dean of the College. She was unsuccessful at the interview and was told that she fell down in two areas; research and contributions to the Department, the University and wider community. The complainant said that it was noteworthy that she fell down in the area of research, given that access to research had been removed from her contract. She appealed this decision. She said that she sent her appeal to the President and included in that appeal was issues in relation to the new contract. An Appeal Panel was set up. However she got no direct response from the President in relation to any of the other issues, particularly in relation to the new contract, she had raised in her appeal document. However her appeal for progression above the bar was successful. She said that the Senior Lecturer Appeal Board in upholding her appeal recognised in their report that she was given a unique contract and it went on to say that she “suffered uncertainty about the continuation of her employment – during a period when the University did not cover itself in glory in relation to the treatment of TTAs.” She also said that the Appeal Board recognised that she was asked to work during her maternity leave and went on to say that “she also suffered a number of indignities at the hands of the University, the Department and one colleague at least.”
2.13 On 20th November 2007 and without any prior indication, the complainant said that she was offered a new contract of employment which had the title of University Teacher. It was an enhancement on the previous contract; however it still required her to do 15 contact teaching hours thus giving her very little opportunity to conduct proper research because of the ratio between classroom hours and the necessary preparation work. Associated research was included in this contract but she still was not eligible to take a sabbatical, but she could take study-leave out of term. She said that the new contract followed the issue of a working party report into the grade of Applied Language Teacher. She was informed that there were discussions between the HR Office and the Registrar’s Office and a decision was made to homogenise the Applied Language Teacher conditions of employment into a revised University Teacher conditions of employment. She said that she contacted an Applied Language Teacher in the Language Department who told her she did not get a new contract in 2007. The complainant states that the issue of this new contract to her supports her contention that her position of teacher she was given in 2005 was a unique position within the University. The complainant said that she refused to sign this 2007 contract. She set out her reasons in a letter to HR on the 10th of February 2008. She pointed out that she was denied an opportunity carry research or take a sabbatical so that she could pursue a PhD for career enhancement and also requested that her title be changed back to Lecturer. She again wrote to the President of the University objecting to the way she was being treated but the reply she received did not address any of her concerns. She said that the University Equality Policy was introduced in 2000, but there was no provision for member of staff raise a complaint about equality issues. However a new policy was introduced in 2008 containing this provision. Despite having raised all the issues in writing at the highest level in the University she had received no satisfactory response to her grievances. Therefore she engaged a solicitor. She said that on the 4th of March 2008 her solicitor wrote to the respondent complaining about discriminatory treatment under the equality legislation. In that letter her solicitor outlined thirteen matters which he stated were grounds to take a complaint of discriminatory treatment, but he went on to say that the complainant would not pursue a case to the Equality Tribunal if, as requested, the new contract issued to her would restore her to the position of Lecturer. She said that a lot of correspondence passed between her solicitor and the University’s solicitor, but she was not offered the title Lecturer. The respondent informed her solicitor that they would investigate the matter but the investigation was very slow to get off the ground. The complainant referred her complaints to the Equality Tribunal on the 30th of April 2009 in relation to discriminatory treatment she suffered in relation to her conditions of employment on the gender, family status and disability ground.
2.14 She said that the respondent only established an internal investigation panel under the equality policy grievance procedures in April 2009. She attended a hearing and submitted evidence to the panel appointed to investigate her grievance. She said that she was not allowed to comment on the evidence of other people interviewed in connection with her complaint. She said that she received a folder containing the evidence on the 2nd of December 2009 and despite having informed her managers that she was travelling to Sydney on the 7th of December 2009 on a work related project with a University, the results of this internal investigation was put in her internal mail box on the 9th of December 2009. She said that she was given 10 days from the date of the letter to appeal and that time limit had expired by the time she returned to work. She said that it was significant that the final result was left in her mail box, although all the other communication she had with the Equality Investigation Panel was by email. She said that it took over 8 months for the panel to issue its decision and none of her complaints were upheld and she was denied further access to the appeal process because of the expiry of the time limit.
2.15 The complainant submitted that the University was happy to acknowledge her as a Lecturer to the students and on their website. She was named a lecturer on the respondent’s website in 2008 when first year students won an award for a project which she supervised and again in 2010 she was named Lecturer of the year and she was acknowledged on the website as a Lecturer.
2.16 The complainant’s counsel submitted that the complainant received a contract entitled Lecturer (Fixed Term) in July 2003 following successive one year contracts from 1994 onwards and these were known as Temporary Teaching Assistant Contracts. However the contract which contained the title Lecturer required the complainant to undertake research and allowed her to take a sabbatical for research purposes. It was submitted that this contract would have allowed her to progress in her career in the Department of Industrial Engineering by allowing her to undertake research for the purposes of obtaining a PhD. The complainant was on sick leave with issues surrounding her pregnancy after her maternity leave concluded earlier in 2004. It was submitted that HR informed the complainant by email of her permanency and her entitlement to a contract of indefinite duration in July 2004, but no contract was issued despite several letters from the complainant and the complainant continued in the employment. In February 2005, and after 6 months had elapsed, she was called to a meeting with HR about her contract and the negotiations took place despite the fact she was on sick leave. The terms of the new contract finalised in July 2005 was effectively a demotion, having no title, research and sabbatical leave removed and in consequence the opportunities to become a Lecturer. It took the respondent until November 2007 to identify to the complainant that she had a University Teacher contract when she was issued with a new contract without any further consultation.
2.17 Counsel further submitted that the complainant was now demoted back to the same non-academic position she held eleven years earlier, when she first commenced employment with the respondent. It was submitted that the complainant was forced into signing the new contract under a threat of dismissal. Counsel further submitted that the complainant is in a unique position as she is the only person in the University to receive a contract with no title, demoting her so that the Lecturers in Industrial Engineering now view her as a non-academic member of staff. The complainant was given a new contract in November 2007 which HR indicated was negotiated with the complainant’s union, a fact she disputed and she has refused to sign it because the title of lecturer was not restored to her contract.
2.17 He said that the complainant had attempted to raise the issues concerning her treatment with the respondent and had written many letters, but got no response. She then contacted her solicitor who wrote to the respondent on her behalf in March 2008, but it took them over a year to set up an investigation. He said that it was accepted by the respondent that the issues raised by the complainant were complaints of discrimination requiring investigation under the University’s equality grievance procedures. This investigation panel was only set up in April 2009 and the investigation commenced in May. The outcome was issued in December 2009 which was not in favour of the complainant. On the 30th April 2009, the complainant referred her complaint to the Equality Tribunal.
2.18 Her counsel further submitted that the complainant was prevented, due to her pregnancy/maternity and pregnancy related sick leave, from gaining promotion in the male dominated Engineering College. He submits that it was discrimination on the gender ground that the post in the area in which she had expertise was never advertised. He referred me to the judgement of the ECJ in the case of Caisse Nationale D’Assurance Vieillesse Des Travailleurs Salaries (CNAVTS) v Evelyne Thibault Case C-136/95 where the Court held that Ms. Thibault was discriminated against in relation to her conditions of employment when no annual assessment was done because she was on maternity leave. The Court stated:
“It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of the Directive.”
2.19 He submitted that the complainant is the only person to receive a demotion by virtue of the new contract and he believes that she was discriminated against on the gender, family status and disability grounds. He submitted that it was significant that no woman has been promoted to the position of Senior Lecturer in the College of Engineering and Informatics. The complainant enjoys her role in the Industrial Engineering Department and she also enjoys dealing with the students but she believes she should be accorded the appropriate status in respect of that role.
3. Respondents case
3.1 The respondent denies that the complainant was discriminated against on any of the grounds claimed. Firstly it was submitted that the complainant has not referred her complaints within the statutory time limits. The complainant was employed as a TTA and then as a Lecturer (fixed term) and has selected a male comparator who is in a different grade and salary structure to her. It was submitted that the complainant’s complaint is about a contract of indefinite duration and she should have taken her case under the Protection of Employees (Fixed Term Work) Act 2003 to the Rights Commissioner. The respondent stated that the complainant was in a precarious position as she was out on sick leave and the University acted in good faith by giving her a contract of indefinite duration.
3.2 It was submitted that there was no discrimination in relation to the new contract for a University Teacher given to the complainant in 2005. While the complainant was the first employee to have been given such a contract another male employee was subsequently given the same contract in 2006. It was further submitted that the complainant has no contractual right to sabbatical leave in her permanent contract which she received in 2005. She can apply for study leave out of term but she has never done so. In relation to research she is not prohibited by her contract from carrying out research but there is no requirement in her contract to carry it out. However her contract provides that she is required to carry out associated research linked to the subject matter she teaches.
3.3 Mr E, HR Manager Employee Relations, said in evidence that a working group was established by the Academic Planning and Resource Committee (APRC) to consider report and make recommendations on the academic grade in the University. He said that the group reported and made a number of recommendations including on TTA posts. Mr E said that TTAs were hired by the University on 10 month contracts to teach and could not carry out research and were not facilitated by the University to do so. Following the report on the Academic Grade Structures, a working group was set up to make recommendations on the implementation of the report. In relation to TTAs, the recommendations set out at paragraph 12.5 of the report were implemented so that rolling temporary contracts were extended to cover the full year, and the title of the post was changed to Lecturer (Fixed Term) with the same incremental salary scale as a Lecturer. He said that the contract the complainant received as Lecturer (Fixed Term) was not the same post as a Lecturer below the bar because there was no promotion from the grade. A Lecturer post requires an occupant to carry out research and they may also apply for progression through the bar. He said that there is an application process plus an interview and applicants have to demonstrate research, teaching and administration work.
3.4 Professor A said that he took over as Head of Department of Industrial Engineering after the retirement of the previous head in 2002. He said that planning was difficult as there was concern about what would happen over replacing the previous head, and there were also issues in relation to the complainant’s post, and each year the HOD had to ask the Registrar’s office about filling the post. The previous HOD tried to get large classes for the purposes of FTE’s and the filling of posts. The rule of thumb is that there should be 20 full-time students per lecturer and the HOD had worked with the Dean of Commerce and persuaded the Commerce Faculty to have their students take courses in the Industrial Engineering Department which were compulsory for Commerce Students. This earned brownie points for the IE department in relation to FTE posts. The complainant was one of the lecturers who gave these courses. A new HOD was appointed in the Commerce Faculty and decided that it would no longer be compulsory for Commerce Students to take these courses in the IE Department and he believes that any opportunity to make the complainant’s post permanent had died around 2003.
3.5 In 2002 the complainant was on maternity leave and Professor A said that he ran into her in town and he was taken aback at her strident attitude towards him. At that stage she had been sent a TTA contract for the year 2002/3 and had not signed it. He was concerned she was not signing up. She eventually signed the contract in July and returned to work. He said that he gave her one of the lightest work load in the department for that year. The complainant was in an office next to him and he said that she never raised any grievance with him. In February 2003 she came to his office to tell him she was sick and then she mentioned she was pregnant. At that stage she did not want to tell the University she was pregnant and indicated to him that she wanted to continue to work. He said that he telephoned HR about the matter and he was advised if the complainant had presented a medical certificate he had to submit it and to tell the complainant to stop working. He said that he did not ask the complainant to work during sick leave and he has no memory of getting a medical certificate from her. He said that he was glad she continued to work given the time in the term. He said that he got the impression that her pregnancy related illness was not too bad at first and that she could continue to work. She then visited her consultant and he then became aware that things were not improving. He could not remember who set the examinations or corrected the scripts but he believes that if the complainant wanted to do so he would not have stopped her.
3.6 In 2006 the complainant told him that she was applying for promotion above the bar and asked him to look over her CV and for permission to put his name down as a referee. As he was the most senior in the discipline he knew he would be on the interview board and declined. He said that he tried to be as helpful as possible to her and mentioned 3 types of questions he might ask. He denied that he ever told her she would be better off getting a job in GMIT. He said that he recollects having a discussion with her in early 2000 when he felt that her post was not going to be formalised. He said that he was of the opinion that TTA’s positions were being abused by the respondent and that he advised her that she should look elsewhere for a permanent position and it was in that context that he mentioned a job he had seen advertised in GMIT. He said that he was also concerned that the complainant had not done research and started a PhD.
3.7 There were 3 people including Professor A from the IE department and 2 others from a different discipline on the interview board. The complainant was unsuccessful as her research was insufficient. She appealed and this decision was overturned. He said that he took issue with the Appeals Board decision because the interview panel had no sight of the appeal or opportunity to defend themselves against the statements made by the complainant.
3.8 He denies that he told the complainant that she no longer had voting rights at faculty meetings and that she could no longer walk in the academic parade. He does not accept the complainant’s contention that she suffered isolation in the department. He said that he always had a good relationship with her, but after her failed promotion above the bar her attitude towards him changed and she refused to acknowledge him. He said that he was always very encouraging of the complainant as she was the first female to teach in the IE unit. He said that he had not seen the complainant’s Teacher contract and he said that he had no opinion on whether it was a downgraded position. He said that there was no difference between what the complainant did and what other lecturers did as regards interfacing with students. He said that she was an equal member of staff and he was not aware she was refused funding for research. He said that the complainant could have carried out research without funding but it was not clear to him that she had a tenable research programme.
3.9 Professor B said that he was HOD from 2003 to 2007. He met the complainant in July 2006 on her return to work after sick leave. They discussed the nature of her contract and what she would be doing. He told her that research was not a part of her contract as it was not specified in it. He said he did not know what the complainant did before her sick leave. She was now a Teacher and could not walk in the academic parade and she was not a formal member of faculty. Her designation was not academic and neither could she be a formal supervisor of PhD students as she could not be a research supervisor. He interviewed the complainant in relation to her application to move above the bar. The panel made an assessment of her in accordance with the criteria provided by the Registrar’s Office and research was one of the criteria. He was very unhappy with the decision of the Appeal Board. He believes that the Interview Board were given incorrect criteria. He said that communications became difficult with the complainant after the interview.
3.10 The HR Director said that the complainant was on sick leave and as her sick pay was coming to an end the file was passed to him. He said that he reviewed the file and there were 2 issues for consideration. There was a letter on file concerning the formalisation of her contract and the other issue concerned her continued absence on sick leave. He took the view that the complainant was entitled to become a permanent member of staff. He said that he had to accept that she had an entitlement as she was there on continuous contracts since 1994. In making that decision he took into consideration an Employment Appeals Tribunal decision in the case of in Fitzgerald V St Patrick’s College Maynooth and also took into account Protection of Employees (Fixed Term) Act 2003 and concluded that her employment was ongoing and permanent. He said that there was no need for the complainant to initiate a claim under the Fixed Term Act as she was entitled to continue in the employment on the basis of the contract which existed at the time and to carry forward the terms and conditions.
3.11 He then wrote to the complainant on the 3rd February 2005 inviting her to a meeting. The complainant attended the meeting together with her union representative. The purpose of the meeting was to discuss the two issues of sick leave and her contract. He said that it was a very collaborative meeting and they were trying to reach an equitable solution. He said that he could not accept the title of Lecturer in the complainant’s contract as the post of Lecturer is filled by open competition following an interview and having demonstrated competence in teaching and research. He said that there was no requirement in the complainant’s Lecturer (Fixed Term) contract to carry out research. The contract he offered the complainant was based upon the Applied Language Teachers contract. The complainant wanted a Lecturer contract. On the 28th of February 2005, the HR Manager wrote to the complainant enclosing a contract of employment and confirming that he was formalising her post with effect from 1st of January 2005 in Industrial Engineering in line with the Protection of Employees (Fixed Term) Act. He said that the complainant had problems with the contract and he had further meetings with her to clarify matters. She continued to seek the title of Lecturer, but the title of Lecturer was not acceptable to the University. Following clarifications a further contract was issued to her by letter of 21st June 2005. The complainant signed the contract and it was signed by the respondent and a copy returned to the complainant on the 19th July 2005.
3.12 The HR Manager denied that he put any pressure on the complainant to sign the contract, or that he ever said to her union official that she would have been deemed to have frustrated her contract if she did not sign it. He accepted that nobody else got the same contract as the complainant. He said that there were a number of people in the same position as the complainant and a working group was set up by the Registrar in 2007 to review the terms and conditions of employment for Applied Language Teachers and the Teacher position the complainant occupied. There were difficulties between 2005 and 2007 because University Teachers were not academic staff. The working group presented an interim report which was accepted by the APRC recognising University Teachers as academic staff and setting out recommendations on the eligibility to access University schemes for academic staff. A new contract was sent to the complainant in November 2007 reflecting these changes. The complainant refused to sign this contract. He accepted that nobody else got that particular contract.
3.13 The complainant was referred to the University doctor in 2005 for a medical assessment and the HR Manager received a medical report indicating that the complainant was unfit to return to work for a further year. In the circumstances he said that he granted her sick leave for a further year and she returned to work on 1st July 2006.
3.14 Professor C said that he was the Dean of the COEI from 2001 to 2010. He said that the complainant applied for the Millennium funding to carry out research, but she did not qualify as she was not permanent. He said that there were 5 formal faculty meetings per year. He said that the complainant could attend faculty meetings on invitation and since 2006 he always encouraged her to attend. However because she had a teaching contract she could not vote at faculty meetings and neither was she eligible to apply for the post of Dean or Vice-Dean.
3.15 The respondent’s representative submitted that the complaints were referred outside the statutory time limits. Notwithstanding this argument he submitted that it was up to the complainant to establish a prima facie case of discriminatory treatment and he referred me to the Labour Court decision in Mitchell v Southern Health Board 2001 ELR 201. He submitted that the complainant has not met the required standard of proof and a mere difference in gender of itself between two candidates is not sufficient to establish gender discrimination and to shift the burden of proof. There was no credible evidence presented to show that the complainant was put under any duress to sign off on the new contract that she received in 2005. She had the assistance of the union and she willingly signed the contract. He submitted that the contract brought about improvements in her pay and gave her permanency. While the complainant was the first to get a contract of Teacher, the contract was not unique to her and there are currently 31 staff members, including Applied Language Teachers and Applied Computer Teachers, with such contracts both male and female.
3.16 The respondent’s representative further submitted that the complainant did not apply for the Lectureship posts which were advertised in the Industrial Engineering department. However he accepted that these posts were not in her area of expertise, but he also stated that the posts of Lecturer are externally advertised and are not designed for any member of staff in order to make them permanent. The reasons the complainant gave for not applying is that she did not have the skill sets or qualifications and he submitted that this had nothing to do with her gender and in any event two females got the job and for this reason she cannot establish discriminatory treatment on the gender ground. He submits that she has now better terms and conditions of employment than she would have achieved if she had received a contract of indefinite duration by operation of law under the Fixed Term Act.
He submits that the complainant has failed to establish discriminatory treatment on the grounds claimed.
4. Conclusions of the Equality Officer
Preliminary Issues Time Limits
4.1 The respondent has submitted that the complaint is out of time. Therefore, before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal. Section 77(5) (6) and (6A) of the Acts, as amended, provides:
“(a) Subject to subsection (6), 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 occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.
(6A) For the purposes of this section—
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the
end of the period,
(ii) if it arises by virtue of a term in a contract, throughout
the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over
a period, throughout the period,
(b) a deliberate omission by a person to do something occurs
when the person decides not to do it, and
(c) a respondent is presumed, unless the contrary is shown, to
decide not to do something when the respondent either—
(i) does an act inconsistent with doing it, or
(ii) the period expires during which the respondent might
reasonably have been expected to do it.
4.2 The respondent’s representative submitted that the complainant referred the complaint outside the statutory 6 month time limit and therefore the Tribunal does not have jurisdiction in the case. It was submitted that the referral of the complaint on the 30th of April 2009 would have required an incident of alleged discrimination to have taken place no earlier than 30th October 2008 and that all the incidents complained about predate this deadline. He submitted that I have to draw a distinction between ongoing discrimination as opposed to separate and discrete acts of discrimination and he said that all of the separate incidents put forward by the complainant are outside this statutory time limit. He further submitted that the complainant must show that an act of discrimination occurred within the 6 month period prior to the referral of the case and referred me to the Labour Court decision in the case of Cork VEC and Hurley EDA1124. and said that the complainant had provided no evidence to establish that any of her complaints were within the 6 month time limit.
4.3 Counsel for the complainant rejected the respondent’s arguments and stated that there were continuing acts of discrimination and all the issues were raised with the respondent over a long period of time and the respondent did not investigate them. Counsel submitted that the discrimination was ongoing and referred me to an Equality Officer decision in Dunbar v ASTI DEC-E2009-054 where there were a series of incidents over a period of time and the Equality Officer concluded that all the incidents complained about were connected to the same issue and including the last incident and therefore the complaint was referred within the time limit. I was also referred to the Labour Court decision in the case of Department of Health and Children v Gillen EDA 0412 and asked me to apply the reasoning therein as regards time-limits and to hold that the matters complained about by the complainant as continuing and connected series of events.
He further submitted that the complainant complaining about her treatment and demotion since 2006, but she could not lodged a grievance under the Equal Opportunities Policy as there was no mechanism in the Policy until December 2008 when a new policy came into effect. It was submitted that previous to that the complainant had written numerous letters to the respondent complaining about her treatment in relation to her conditions of employment and the contract of employment negotiated while she was on sick leave. A new contract titled University Teacher issued to her in November 2007 which her Counsel submits continued to discriminate against her and in a letter refusing to sign this contract she requested the respondent to restore the title of Lecturer to her contract. The complainant’s solicitor then wrote to the respondent on the 4th of March 2008 alleging that the complainant had been discriminated against under the Equality Acts asking that her contract confirms that she is a Lecturer. On the 15th of May 2008, in response to a letter from the respondent’s solicitors, the details of the discrimination were outlined by the complainant’s solicitors and no response was received until the 24th of October 2008. An investigation was promised under the Grievance Procedure. It was submitted that the respondent delayed investigating the complaints because initially they had no procedures in place and then only initiated an investigation after correspondence from her solicitor stating that her rights under the Employment Equality Acts had been infringed and proceeded to investigate the matter only after a complaint was made to the Equality Tribunal.
Counsel also submitted that the delay in referring the complaint was due to misrepresentation in accordance with the Equality Acts. He submitted that the complainant sought to use the internal grievance procedures before referring a complaint, but there were delays firstly because there were no procedures and then when the procedures were put in place in December 2008 there were further delays. The investigation under the procedures did not commence for a year after the complaint was made and the outcome was issued about 8 months later. He submits that this delay constitutes misrepresentation under Section 77(6) & (6A) of the Acts.
4.4 From the evidence it seems to me that the complainant is complaining about a general policy of discriminatory treatment which she alleges was practiced against her and in support of this she has submitted that a series of separate acts which she states were are all connected to discriminatory treatment on the gender, family status and disability grounds and were continuous and ongoing at the time the complaint was referred. In addition it was submitted that the respondent delayed in investigating the complaints and this constitutes misrepresentation under Section 77. In considering the application of the time limits under Section 77 and Subsections (5)(a), 6 and (6A) above, and whether the Subsections refer to different forms of discrimination, it is my view that Subsection (5)(a) and Subsection (6A) are not mutually exclusive as subsection (6A) refers to “For the purposes of this section” and it does not refer to any particular Subsection in isolation. It is my view that Subsection (6A) clarifies the broad principles set out in Subsection (5)(a) and subsection (6) and it is for this reason I am considering the time limit issues in the context of all of these Subsections. I am also satisfied that the time limit issues in the Hurley case can be differentiated from the case herein on the facts of that case.
4.5 In considering the issue of whether the matters complained about constitute ongoing discrimination and a chain of linked events, I have taken into consideration the Labour Court reasoning in the case of County Louth VEC –v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
“Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:
“The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states 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 six months from the date of the occurrence, or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates".
The complainant’s complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground”.
4.6 In applying the jurisprudence of this Decision, I note that the complainant is complaining about a number of issues set out above which she alleges constitute an ongoing policy of discrimination in relation to her conditions of employment. The alleged discrimination complaints range from being asked to grade examination scripts while she was on maternity leave to changes in her contract of employment which she was on sick leave associated with her pregnancy which resulted in a demotion. I note that she is complaining that as a result of this demotion she could no longer attend faculty meetings or vote on important issues. However I note that she was invited to attend a meeting on the 5th of December 2008, but she was denied a vote on the winding up of the Industrial Engineering department. She said that she is a member of this department for over 14 years and had a vote in the past on matters arising at these meetings. She considered this discriminatory treatment arising from her demotion negotiated during her pregnancy sick leave and the consequential disability she suffered. She raised the issue during the course of the meeting. On the 30th of April 2009 the complainant referred a complaint to the Director, which was within 6 months of this issue complained about on the 5th of December 2008. Having regard to my findings below, I find that this was a related act of discriminatory treatment in relation to her conditions. I am also satisfied that the complainant has established a satisfactory link between all incidents and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing act or a continuum of discrimination within the meaning of section 77. I find therefore that the complaints were referred within the six month time limits provided for in section 77(5)(a) of the Acts and that I have jurisdiction in the matter.
4.7 Notwithstanding my finding above and for the avoidance of doubt, I have also considered the complaint under Section 77(6A)(ii) & (iii) of the Act cited above, which provides that if the alleged discrimination arises by virtue of a term in a contract or a provision which operates over a period of time, the discrimination is considered to be operative during the whole period of the contract or the period of time the provision is in operation. The complainant is complaining about ongoing discriminatory treatment including the terms contained in a new contract of employment she received in June 2005 and another new contract received in 2007 which she refused to sign. The complainant claims that the the terms of the 2005 contract were unique to her, removed the title of Lecturer from the contract she had and inserted/omitted terms and conditions and she submits that this was discriminatory and it was for reasons connected to her gender, family status and disability. She said that the contract had no title and she claims she was pressurised into accepting this downgraded contract while she was on sick leave. She states that the terms contained in this contract are discriminatory and had the effect of demoting her from the position of lecturer. She is no longer recognised as a member of the academic staff and all of this has had the effect of stalling her career prospects and isolating her in a position from which she could apply for promotion positions. She submits that she could not apply for the post of Dean or sit on the Interview Board because of the term Teacher in her contract. For the reasons stated below, I find that the terms of the contract were discriminatory and any conditions of employment which flowed from it contributed to the ongoing discrimination of the complainant. I am satisfied that at the time of the referral of the complaint to the Director the provisions of the contract which the complainant was complaining about were still operative as the complainant’s title is still a Teacher. I find therefore the complaint was referred within the statutory time limits specified in Section 77(6A)(ii) & (iii) and I have jurisdiction to hear the complaint.
4.8 I have also considered the submission on behalf of the complainant that the delay in referring the complaint was due to a misrepresentation by the respondent in that the respondent said that they would carry out an investigation and then delayed in doing so. The complainant submitted that she was complaining about her conditions of employment and was referring to the Teacher contract as an equality issue since October 2006 to early 2008 without any resolution to the issue and then she contacted her solicitor following receipt of a new contract which still did not restore the title of Lecturer to her contract. The solicitor in a letter dated the 4th of March 2008 raised the issue of discrimination and a referral of a claim to the Equality Tribunal. I note that the solicitor requested the respondent to restore the complainant’s title of Lecturer and said that if that happened it would resolve the issue. I also note that was correspondence exchanged between the solicitors for the parties and in October 2008, the respondent accepted that the matter would be investigated as an equality issue under the grievance procedures. The investigation did not commence until April 2009 and the outcome was not issued until December 2009. In the meantime the complainant referred her complaint to the Tribunal on the 30th of April 2009. It seems that the delay in referring the complaints to the Equality Tribunal arose because the complainant was trying to resolve the matter internally and was waiting for the outcome of the investigation the respondent promised to set up before referring her complaint. It was submitted on behalf of the complainant that this delay constituted misrepresentation under Section 77(6) and (6A) of the Acts. I am not satisfied that there is sufficient evidence to establish misrepresentation on behalf of the respondent and I am not finding in favour of the complainant in relation to this claim.
Contract of Employment
4.9 The next preliminary issue I have to decide on relates to the respondent’s submission that the complainant should have taken her complaint of discrimination about the contract of employment to the Right’s Commissioner under the Protection of Employees (Fixed Term) Act. It was submitted that the complainant is complaining about a contract which she received under the terms of that Act and that I have no jurisdiction in that matter.
4.10 The respondent is correct to say I have no jurisdiction under the Protection of Employees (Fixed Term) Act and I want to make it clear that I am not making any finding in relation to that Act. However I note that the complainant has outlined many issues regarding her conditions of employment and treatment going back before her first pregnancy/maternity leave in 2001 and including a complaint about a contract of employment which she signed in 2005 which she says is discriminatory on the gender, family status and disability grounds, and another she received in 2007 which she also says constituted discrimination under the Acts. As I have stated above the incidents are interlinked and formed a continuum and there is no bar under the equality legislation preventing me from investigating all aspects of complaints about discriminatory treatment. I note that the complainant’s contract of employment which was titled Lecturer (Fixed Term) expired on the 31st of August 2004, the complainant’s employment continued after this date, but no new contract issued to her at that point. I also note that the Academic Planning and Resource Committee (APRC) took a decision to continue the complainant’s contract in the post she occupied (unfilled Junior Lecturer post) for a further year after its expiry on the 31st of August 2004. I further note that in a memo on the complainant’s personnel file dated the 2nd July 2004, the HR Manager in Administration stated that the complainant had been 10 years in the position and had accrued employment rights. Likewise I note that in an internal memo dated the 30th of July 2004 from the HR Manager Employee Relations stated that the complainant “may have a case under the Part-Time Workers Protection Act that would make her temporary contract permanent …. and he went on to say that “she should be treated in like manner to her comparable permanent colleagues in the interim.”
4.11 I note that there are several memos and e-mails on the personnel file stating that the complainant was entitled to a contract of indefinite duration, including a hand written letter from the HR Manager addressed to the complainant telling her that she was entitled to a contract of indefinite duration. The complainant’s evidence was that she was informed a number of times in July 2004 onwards that she was permanent and her contract of employment would be formalised. I note that the complainant’s employment continued after the 31st of August 2004, the date her contract was due to expire. I note that the complainant enquired from HR about getting a written contract on a number of occasions from July 2004 to January 2005 and she applied for a year’s leave of absence because she understood she was permanent and entitled to it under the contract she held. I also note that the HR Manager had taken a view that the temporary status of the complainant’s employment was unlawful and he could not dismiss her. In coming to that conclusion he said that he was relying on an Employment Appeals Tribunal decision in the case of Fitzgerald v St. Patrick’s College, Maynooth UD244/1978 (the so called anti abuse of the Unfair Dismissal legislation). In that case the claimant had been on successive fixed-term contracts in Maynooth College and the EAT held that the Unfair Dismissals Act 1977 applied to the non-renewal of such employment contracts.
4.12 Having taken into consideration all of the forgoing points, all the documentation presented in evidence, and the complainant’s own evidence, and the evidence of the respondent, it appears to me that all the parties acted upon the understanding that the complainant had obtained statutory and legal rights in relation to the continuation of her employment on a permanent basis after the expiry of her last contract in August 2004 and it appears her employment continued without any interruption for this reason. Therefore the permanent nature of the complainant’s employment after August 2004 is not in dispute. I note that negotiations were initiated by the respondent to give the complainant a new contract about 6 months later. As I have found above that the complaints referred form a continuum of alleged discriminatory treatment, so I am satisfied that I can consider the terms of the contracts issued to the complainant in 2005 and 2007 as regards discriminatory treatment on the grounds alleged in the context of the contract she held and the overall treatment of the complainant in relation to her conditions of employment. I am not making a finding in relation to the respondent’s claim concerning the contract as it was accepted by the HR Manager in evidence that the complainant was a permanent employee.
Gender, Family Status & Disability discrimination
4.13 I must now consider the complainant's claim that the respondent directly discriminated against her on the gender, family status and disability grounds in terms of sections 6(1) and 6(2)(a)(c)(g) of the Employment Equality Acts 1998 and 2011, in contravention of 8 of the Acts. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.
4.14 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(1) Where in any proceedings facts are established by or
on behalf of a complainant from which it may be presumed that
there has been discrimination in relation to her or her, it is for the
respondent to prove the contrary.”
The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as 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.”
In considering Section 85A, as amended, the Labour Court stated in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:
"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.
The Labour Court went on to say in that case:
"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately be drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."
In Melbury Developments Ltd v Valpeters EDA0917 the Labour Court held that:
“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 went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on any of the grounds. If the complainant does not discharge the evidential burden, the claim cannot succeed.
4.15 I am now considering the evidence in the light of the above to determine whether the complainant has established a prima facie case. Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:
"….. discrimination shall be taken to occur –
a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)"
Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
“(a) that one is a woman and the other is a man (in this Act
referred to as ‘‘the gender ground’’),
(c) that one has family status and the other does not (in this
Act referred to as ‘‘the family status ground’’),
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),”
Section 6(2)A provides
(2A) “Without prejudice to the generality of subsections (1) and
(2), discrimination on the gender ground shall be taken to occur
where, on a ground related to her pregnancy or maternity leave, a
woman employee is treated, contrary to any statutory requirement,
less favourably than another employee is, has been or would be
Section 8 provides:
“8(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective
employee and a provider of agency work shall not discriminate
against an agency worker.”
(4) A person who is an employer shall not, in relation to
employees or employment—
(a) have rules or instructions which would result in discrimination
against an employee or class of employees in
relation to any of the matters specified in paragraphs (b)
to (e) of subsection (1), or
(b) otherwise apply or operate a practice which results or would
be likely to result in any such discrimination.”
(6) “Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee or prospective
employee in relation to conditions of employment if, on any
of the discriminatory grounds, the employer does not offer or afford
to that employee or prospective employee or to a class of persons of
whom he or she is one—
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures, as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.
(7) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee in
relation to training or experience for, or in relation to, employment
if, on any of the discriminatory grounds, the employer refuses to
offer or afford to that employee the same opportunities or facilities
for employment counselling, training (whether on or off the job) and
work experience as the employer offers or affords to other
employees, where the circumstances in which that employee and
those other employees are employed are not materially different.
(8) Without prejudice to the generality of subsection (1), an
employer shall be taken to discriminate against an employee in
relation to promotion if, on any of the discriminatory grounds—
(a) the employer refuses or deliberately omits to offer or afford
the employee access to opportunities for promotion in
circumstances in which another eligible and qualified person
is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford
the employee access in the same way to those opportunities.”
The definition of disability under the Act is as follows:
“(a) the total or partial absence of a person’s bodily or mental
functions, including the absence of a part of a person’s
(b) the presence in the body of organisms causing, or likely to
cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of
a person’s body,
(d) a condition or malfunction which results in a person learning
differently from a person without the condition or
(e) a condition, illness or disease which affects a person’s
thought processes, perception of reality, emotions or
judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or
which previously existed but no longer exists, or which may exist in
the future or which is imputed to a person;”
I am satisfied that the complainant had a disability within the meaning of the Act as I have seen medical evidence of the condition the complainant suffered from following her pregnancy.
Maternity/Pregnancy and Advertisement of Post
4.16 The complainant submits that she was discriminated against on the gender ground over a long period of time. She submits that she was working in a male dominated area in the Industrial Engineering Department and that she was the only person at that time to seek maternity leave and to have had pregnancy related illness. She submitted that there were very few women with permanent Lecturer contracts in the 5 Engineering Departments ( now the College of Engineering and Informatics COEI) and out of a total of 35 permanent lecturers in 2005 only 2 were female and in 2008 there were 37 Lecturers and 3 of these were female. There was only one permanent female Lecturer between the five engineering departments up until 2002 when a second lecturer was appointed to the Electronic Engineering Department. The complainant also said that she was the first woman employed in the Industrial Engineering and only person in the Department on rolling yearly contracts for such a long period of time despite the fact that she did the same work as a permanent male Lecturer and her post was never advertised. I note that the complainant was 10 years on such contracts in the Industrial Engineering Department and she was the only Lecturer on this type of contract for this period of time. The respondent stated that the complainant had not applied for any of the Junior Lecturer posts advertised, it was accepted the complainant’s own post had not been advertised. The complainant said that none of the posts advertised were in her area of expertise and even if she had applied for them she would not have been successful given that the Lecturers on contracts who occupied the posts were the successful candidates. The complainant said that she had been promised on several occasions by the Head of the Department (HOD) that her post would be advertised and as Irish was a requirement she went to classes to improve her Irish.
4.17 I note that there were a number of recommendations/decisions made over the years to convert the unfilled Junior Lecturer post the complainant occupied on a fixed term contract basis to a permanent position. In a report of a review of the Department of Industrial Engineering in 2002 disquiet was expressed (paragraph 6.2 of the report) that some staff were not permanent after many years of teaching including teaching to Master level students. The report went on to say that the “Department should be aware that it was relying on non-permanent staff of a particular gender i.e. females, to fulfil its teaching duties.” The complainant said that this referred to her as she was the only long term TTA on rolling contracts at that stage. I note that for the year 1999/2000 the APRC approved a request from the complainant’s then HOD that her post becomes a full-time TTA post for that year. The APRC also noted that the post related to both the Commerce and Engineering faculty and they would decide early in the academic year on the long term provision to be made for the discharge of the duties of the post. In a follow up meeting of the 5th of February 2003 on the review by the Department of Industrial Engineering, an action plan was approved and the Registrar was instructed to liaise with the department in relation to the conversion of contract posts to permanent posts. The Strategic Plan for the Department 2003 to 2007 also mentions that the complainant’s post should be regularised. I also note that the APRC decided to renew the complainant’s contract for the year 2003/2004 and requested the Registrar to consult with HR about options available in respect of the post. I note that the Working Group on Academic Grade structures set out the criteria in determining whether a TTA should be appointed to a post and stated that that they did not expect that such posts should be temporary for a period in excess of 3 years.
Despite these recommendations, decisions and reports, the post of Junior Lecturer that the complainant occupied was not advertised. I believe this is significant as other posts occupied by contract Lecturers in the Industrial Engineering Department were advertised.
4.18 I note that the complainant went out on maternity leave in 2001/2002 and following her statutory maternity leave she applied for unpaid maternity leave. In that application she raised with management the fact that she was required to carry out work during her maternity leave and requested the time off in lieu. I also accept that the HOD, now retired, made a comment about whether or not her contract would be renewed in light of the time off she was taking. He acted as a referee for her application for progression above the bar and I note that he said that he would not regard her as very cooperative or loyal from 2000 onwards and he further commented on the University’s lack of academic cover for persons on sick leave or maternity leave. These comments are significant in the light of the fact that the complainant was pregnant in 2001 and that she raised the issue about being asked to work during her maternity leave with HR and was given time off for the periods she worked. I also note that in a letter to the investigation panel hearing the complainant’s equality grievance, he accepted that the complainant did come to his office and graded some examination scripts, but he denied that he asked her to do so. I have weighed up all these matters and I have accepted the complainant’s evidence that she was asked to work during her maternity leave. Likewise I am satisfied that comments were made to the complainant when she refused to do some work when she was on maternity leave and when she sought the time off for the periods of work and these comments led her to believe that her contract was in danger of not being renewed. I am satisfied that the complainant has established that she was treated less favourably because of her pregnancy and maternity leave and accordingly, I find that she has established gender discrimination in relation to this aspect of her complaint.
4.19 I note that the complainant was certified with a pregnancy related illness in February 2003 and it was her evidence the she was asked by Professor A (the new Head of Department) to continue working until the end of the semester because there was a lack of staff to teach her subjects. She also states that after she went on pregnancy sick leave and then on maternity leave she had to set the examinations and grade the scripts. She said that she was afraid that her contract would not be renewed if she did not do so. Professor A who took over from the HOD in 2002 said that he had no recollection of asking the complainant not to go on sick leave while she was pregnant and while he has no recollection of asking her to grade scripts while she was on maternity leave, he said that he was not denying that he may have done so because he believed she might have been interested in keeping in contact with the Department. I have to accept the complainant’s evidence on this point and it is significant that she raised the issue of working during maternity leave and an issue about not being able to take holidays with the HR manager Administration in a letter dated the 22nd July 2004 and that this letter was seen by Professor A. In his response, I note that he did not deny that the complainant’s version of events as outlined in her letter. He stated that all contract staff in the department were treated exactly the same as permanent staff. I note that he stated that examination papers carry the name of the staff member setting them. This supports the complainant’s version of events that she set the examination paper during her pregnancy sick leave as her name is on the paper. I note that the complainant got time in lieu from HR in respect of this period. Therefore I accept the complainant’s evidence in relation to what happened during her pregnancy related illness and maternity leave and I find she has established that she was discriminated against on the gender ground in relation to this aspect of her case.
4.20 I am also satisfied that the complaints raised by the complainant in relation to the above had a significant impact on her position in the Industrial Engineering Department. It is clear the complainant felt under pressure to work during her pregnancy related illness and maternity leave because she was led to believe that her contract might not be renewed if she did not do so. I am satisfied that the informal issues raised by her concerning the above treatment during her pregnancies and maternity leave and the fact she was the only person in the department to have taken two periods of maternity leave at that time had a significant impact on her treatment within the department and the non-advertisement of the post she occupied.
4.21 The respondent’s evidence is that posts for Lecturers were advertised and two female applicants were successful and therefore there was no gender discrimination. However I also note that a male lecturer joined the department in or about the same time and on a similar contract to the complainant, and his post was advertised a few years later and he was successful in gaining a Junior Lecturer post. I note that two other Lecturer posts were advertised, one in 2005 (in Health and Safety) and the other in 2008 (in Business Entrepreneurship and Innovation), but they were not in the complainant’s area of expertise and the successful female applicants both occupied the posts on Lecturer (Fixed Term) contracts and both of them were in their position for a much shorter period than the complainant and neither of these posts required an Engineering degree. There is no evidence that the successful female applicant in 2005 had been on maternity or pregnancy related sick leave and the successful female in 2008 had two periods of maternity leave at a much later time to the complainant’s maternity leave. I note that there were two male Lecturers (Fixed Term) in posts which became redundant following a decision not to continue teaching their subjects. One of them was made redundant and the other accepted a post as a Researcher. It is clear however that the Department of IE continued to offer the subjects the complainant lectured in and that her post was not redundant. Having taken into consideration the totality of the evidence, I am satisfied therefore that the complainant has raised an inference of discriminatory treatment on the gender ground in relation to this aspect of her case.
4.22 I note that the title of the complainant’s position which was an Unfilled Junior Lectureship post was changed from TTA to Lecturer (Fixed Term) as per a review carried out by the working group on Academic Grades and Structures. The complainant was given a contract to reflect that change - Lecturer (Fixed Term) for the academic year 2003/2004 and that contract was due to expire on the 31st of August 2004. The APRC made a decision to renew the contract on the 21st of June 2004 for a further year, but no new contract was issued to the complainant at that stage and her employment continued. The complainant’s evidence is that the contract titled Lecturer (Fixed Term), which she received in 2003 gave her all the conditions of employment of a permanent Lecturer, and that contract was made permanent in July 2004 by HR. She was awaiting formalisation of it, but instead of doing so the respondent issued her with a totally new downgraded contract. She said that she was forced into accepting an untitled contract of employment which lowered her terms and conditions from what she had in the Lecturer contract. I note that the complainant objected to the terms of the contract and had several meetings with the HR Manager and the negotiations which started in February were not finalised until June 2005. She said that she was warned if she did not sign it that she would be deemed to have frustrated her contract. The complainant said that she was in a vulnerable position and signed the contract. The respondent said that the contract was one under the Fixed Term Act and the complainant was the first such contract under the legislation and it was an individual contract for her. They further submitted that they could not give her a Lecturer contract as they were obliged to publicly advertise such posts and they modelled the contract on the Applied Language Teacher Contract. It was also denied that there was any threat of her contract being deemed frustrated.
4.23 I note that the HR Manager said in relation to the contract: “As there was no category to put her into, this was the reason for offering Ms. Dempsey a post without terms and conditions.” However I also note that there was no evidence put before me to say that the post had now been designated as a Teacher post. Likewise I note that the APRC had designated the post as an unfilled Junior Lecturer post and renewed the complainant’s contract in that post in June 2004 for the academic year 2004/2005. The respondent submitted that a male employee in the Science Department got the same contract about a year later so therefore the complainant has failed to establish discriminatory treatment in relation to the contract.
4.24 The HR Manager submitted that it was the complainant’s union that first raised the issue of the complainant’s contract with him because they had concerns that she did not qualify for sick pay. Furthermore it was submitted the complainant had union representation during the course of the negotiations and for this reason she was not disadvantaged in any way in relation to the contract negotiations. The complainant disputes that she asked her union to sort out her contract with the respondent. She said that she only contacted the union following the 3rd of February 2004 letter from the respondent stating that he would call to her home if it was convenient to her, to review her employment situation and discuss options open to her. The complainant said that she was worried about this letter given that she had been seeking details about her permanent contract since the previous July. She then contacted her union and the meeting was arranged with her union in the union offices. It is also the complainant’s evidence that the union was not happy with the terms of the contract on offer and advised the complainant to take legal action against the respondent. I accept the complainant evidence on this point.
4.25 I note that the HR Manager was considering dismissing the complainant because of her absence on sick leave and it was in this context that he opened negotiations with her union about the contract. It is clear the complainant was ill and awaiting an operation and had attended the consultant nominated by the respondent and the report was available to the HR Manager. It is clear therefore that the respondent was well aware of the complainant’s medical condition. I cannot accept therefore that the complainant willingly accepted the new contract. While I accept that the complainant had union advice at this time it seems clear to me from all the evidence provided that the HR Manager also had the complainant’s sick leave absence uppermost in his mind during the contract negotiations. I am satisfied from the totality of the evidence that the continuation of the complainant’s contract was under a threat due to her sick leave absence because she was suffering from a disability and the continuation of her employment was contingent upon her signing the new contract. I am satisfied therefore that the complainant had no option but to sign the contract and for this reason, I find that she has established a prima facie case of discriminatory treatment in that she was treated less favourably on the disability ground than a person without a disability would have been treated in similar circumstances in relation to accepting terms of the contract.
4.26 I note that the terms of the contract changed the complainant’s title from Lecturer to Teacher and that this had significant impact upon her position and upon her conditions of employment in the Industrial Engineering department as set out above in the complainant’s evidence. The respondent stated that the category of Teacher arose initially because of the complainant’s illness and her right to sick pay was ending so there was a need to formalise her position and he could not give her the title Lecturer without advertising the post.
4.27 I note that it was accepted in evidence that the 2005 contract was an individual agreement which was unique to the complainant and no other person, either in the Engineering faculty or in any other part of the University, had such a contract at that time. Likewise I note the very significant gender imbalance between male and female lecturers in the Engineering Department. It was acceptable to give the complainant the title of Lecturer in her last fixed term contract as this title arose on foot of the adoption of a report on Academic Grade Structures by the APRC which gave such Lecturers the same terms and conditions of employment as Lecturers except in respect of permanency and pensions. I note that there was no grade titled Teacher referred to in that report. I note the University Statute on the appointment of staff has no reference to the grade of Teacher, but it does refer to the grade of Applied Language Teacher. I note that in 2007 the respondent set up a working group to look at the grade of Applied Language Teacher and a review of the conditions of appointment and duties of Lecturers (Fixed Term) as University Teachers and the distinction between such posts and permanent academic posts. It is clear therefore that this particular grade of Teacher/University Teacher which the complainant occupied did not exist prior to the complainant’s appointment and only came into being in November 2007 following the adoption of the above mentioned report. I am satisfied therefore, that the fact that the complainant had been on two periods of maternity leave and also had pregnancy related sick leave and was suffering from a disability had in my opinion a significant impact on the treatment of the complainant as regards dropping the title of Lecturer, giving her a unique contract without a title to work as a Teacher within the Department of Engineering. Given that the HR Manager believed and accepted that he could not dismiss the complainant on the expiry of her contract in July 2004 because she had permanency due to accrued employment rights it clear therefore her contract title as Lecturer continued (with the fixed term severed due to the aforementioned permanency) until the completion of the new contract in July 2005 when the title of that contract was changed. I note no other Lecturer had their contract changed in such circumstance. For the foregoing reasons, I am satisfied therefore that the complainant has raised an inference of discrimination on the gender, and disability grounds in relation to the terms of the contract.
I note that the new contract issued to the complainant in November 2007 was titled University Teacher. While this contract restored some of the conditions of employment she lost in the previous contract it did not restore the title of Lecturer, sabbatical leave, research and other matters lost from the Lecturer contract. I am satisfied therefore that the discriminatory terms in the new contract continued.
Conditions of Employment
4.28 I note on the complainant’s return to work after her sick leave in July 2006 that her conditions of employment had changed significantly given her position was now a Teacher. She was now classified as non-academic staff and could no longer attend faculty meetings except on invitation. Research had been removed from her contract and she could not apply for research funding. As a Teacher rather than a Lecturer access to a sabbatical was eliminated. Her teaching hours were increased considerably to 15 per week. Yet no other lecturer in the department had these hours stipulated in their contract. She also had over 730 students to correct scripts for the academic year 2006/2007 which was more than any other lecturer in the department. She said that she requested cover for a double lecture because she had a hospital appointment yet she was not facilitated although subsequently she was requested to cover for a male lecturer who had reported ill. On the 5th of December 2008 she was invited to attend a faculty meeting but could not vote on an important issue because her conditions of employment had been altered by the teacher contract. I am satisfied that this treatment flowed from the discriminatory contract and this this constituted less favourable treatment on the gender and disability grounds as all the other staff could vote. She said that she was isolated within the department and the unique contract she had, had the effect of stalling her academic career. I note that she could not apply for the position of Dean in 2009 as she did not hold a position of Lecturer. It is clear that there was no clarity about her contract. It seems to me she had to confront and challenge an evolving interpretation of the contract by her superiors over a period of time and this diminished her professional status within the Department.
4.29 In January 2007, I note that the complainant referred her appeal to the President in relation to the outcome of the interview for progression above the bar and it was the complainant’s evidence that she was isolated further within the department after appealing. She said that she was called to a meeting by Professor B together with the incoming HOD and she was asked “what are the issues” and in April 2007 she received an email from Professor B which was circulated to the whole department in response to a proposal she had made. He suggested that she was perpetuating a major division within the department which had dogged the department for the last twenty five years. Professor B accepted that the email was sent because the proposal the complainant put forward was contrary to an agreed proposal the Department was putting together. However, he denied that she was treated differently and stated that the complainant attitude towards them changed after she failed to progress above the bar.
4.31 I note from the evidence that Professors A and B from the Industrial Engineering Department, who interviewed the complainant in relation to crossing the bar, that they were unhappy with the outcome of the appeal and sought a copy of the appeal documentation referred by the complainant and when it was not forthcoming they put in a request through FOI. They were given access to the Appeal Boards report but they continued to express dissatisfaction with the successful outcome of the complainant’s appeal and Professor A wrote to the President about it. The complainant was entitled to appeal the Decision and it is significant that two of the most senior people in the Department could not accept the appeal outcome. I find it difficult to disassociate these objections from the treatment of the complainant within the Department. I cannot accept that this attitude towards her promotion had no impact on the relationship with her. Therefore, I accept the complainant’s evidence that her conditions of employment deteriorated from 2006 onwards, following the receipt of the Teacher contract and the consequential demotion in her status from Lecturer to Teacher. Likewise, I accept her evidence that she was isolated within the department. Having considered the totality of the evidence presented, I am satisfied that the complainant has raised an inference of discrimination on the gender and disability ground in relation to her conditions of employment which the respondent has failed to rebut.
4.31 In considering this case, I note that the Labour Court in considering whether there was age discrimination in the filling of posts in the case of Portroe Stevedores and Nevins, Murphy, Flood Det. No. EDA051 stated as follows:
“Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport  IRLR 572, per Lord Nicholls at 576).”
In applying the above reasoning I am satisfied that the complainant’s maternity leave and an ongoing disability after that leave together with the fact that she had raised her treatment in relation to having being asked to work while she was suffering from pregnancy related sick leave and also while she was on maternity leave was a contributing cause and had a “significant influence” on the respondent’s deliberations about the terms of the contract and in the overall treatment of the complainant. Taking into consideration the totality of the evidence and all of the foregoing matters, I am satisfied that the complainant has established a prima facie case of discriminatory treatment on the gender, and disability grounds which the respondent has failed to rebut.
4.32 The next matter I have to consider is whether the complainant was discriminated against on the family status ground.
Section 6 (2) of the Act provides that the complainant has to establish that she was treated less favourably than a person who does not have a family status.
The definition of family status under Section 2 is:
‘‘family status’’ means responsibility—
(a) as a parent or as a person in loco parentis in relation to a
person who has not attained the age of 18 years,”
The complainant has to establish that she was treated less favourably than a person of a different family status. I note that the complainant has the same family status as some other employees in the Industrial Engineering Department as they also have children under 18 years old. Therefore that complainant cannot establish a prima facie case on this ground.
4.33 The complainant raised an issue about discrimination on the gender ground in relation to the point on the incremental scale she was put on when she was a TTA. She said she was put on the lowest point on the scale in 1999 and if her previous experience had been taken into account she would have been put on a much higher point on the scale, whereas a male was put on a highest point of the scale when he was a TTA. She raised this issue with the HOD and in refusing to put her on a higher point, he made a discriminatory comment to her. In 2003 when she became a Lecturer (Fixed Term) she was put on the 5th point of the incremental scale and when she queried this she was brought up to the eight point of the scale. She said that if the guidelines on incremental placing had been followed and if she had not been discriminated against when she was a TTA she would have been placed on the highest point of that scale in 2003. The respondent denies that the complainant suffered any gender discrimination in relation to the point of the increment scale she was put on. The respondent submitted that the male comparator was promoted and was in a different grade to the complainant. It was submitted that the rules applied to the incremental placing were the rules applicable at the time and were applied to all staff regardless of gender. As there was not sufficient evidence presented to support a prima facie case this point I am not finding in favour of the complainant in relation to this aspect of her claim.
4.34 The complainant submits that she was discriminated against on the gender ground in relation to access to the income continuance scheme and that if she had been allowed into it in 2004 when she became permanent in 2004 she would have been covered by it when she was out sick. The respondent submitted that the scheme is provided to the University by an insurance company and did not offer cover to staff on fixed term contracts. In order to benefit from the scheme she would have to have been a member of the scheme before she fell ill.
I am therefore satisfied that the complainant could not have joined the scheme prior to becoming permanent and even if she had joined when she did become permanent she could not have received any benefit from the income continuance scheme as she was already on sick leave. Therefore I am satisfied that the complainant has failed to establish a prima facie case of discriminatory in relation this aspect of her complaint.
4.35 The complainant submitted that she has been deemed a new entrant in the 2005 contract for pension purposes. She submits that the period from 1994 to 2004 should have been taken into account for pension purposes and as a consequence of not taking this period into account she has had to buy back her pension for these years.
It was submitted by the respondent’ representative that the complainant has referred the complaint under the Employment Acts and not the Pension Acts which is the legal framework for such complaints and that I have no jurisdiction in the matter as there is no complaint before me under the Pensions Act. Notwithstanding this argument he said that there was an industrial relations issue in relation to the pension. It was submitted that the joint pension scheme was closed to new members in 2003 and people who commenced employment between July 03 and January 2005 were put into a model scheme which affected both male and female staff. SIPTU took a complaint to the LRC where the matter was resolved and the Dept. of Education and Finance took over the pension scheme. The complainant was written to in December 2011 to say she was in the joint pension scheme.
4.36 I note that the Pension Act 1990 as amended by Part VII of the Social Welfare (Miscellaneous Provisions) Act 2004 deals with discrimination in relation to pensions and Section 78 deals with equal access to pensions. Likewise I note that Section 8(6) of the Equality Acts excludes pension rights from consideration under that section. Therefore I am precluded from considering the complaint under the Equality Acts and as a complaint has not been referred under the aforementioned Pension Act I have no cannot investigate the matter.
5.1 Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent discriminated against the complainant on the gender and disability grounds pursuant to section 6(2)(a) and (g) of the Acts and contrary to section 8 of the Acts in relation to her conditions of employment.
(ii) that the complainant has not established discriminatory treatment on the family status ground pursuant to section 6(2)(c) of the Acts.
5.2 Under Section 82 of the Act I can provide redress. The Section provides:
82.—(1) Subject to this section, the types of redress for which a
decision of the Director under section 79 may provide are such one
or more of the following as may be appropriate in the circumstances
of the particular case:
(c) an order for compensation for the effects of acts of discrimination
or victimisation which occurred not earlier than 6
years before the date of the referral of the case under
(d) an order for equal treatment in whatever respect is relevant
to the case;
(e) an order that a person or persons specified in the order take
a course of action which is so specified;
(f) an order for re-instatement or re-engagement, with or without
an order for compensation.
(i) Therefore I order the respondent to restore the title of Lecturer to the complainant’s contract and to provide her with a contract of employment with terms and conditions which puts her in the position she would have held but for the discrimination.
(ii) Section 82-(i)(c) of the Act provides that I can make an order for compensation for the effects of the discrimination. In calculating redress for the complainant, I must be cognisant of a number of considerations. The complainant excelled in her role evidenced by the fact that she won Lecturer of the year award and her students won a project award which she supervised. I have found that she was asked to work during pregnancy related sick leave and also during her maternity leave, her post was not advertised despite promises, a new contract which downgraded her status as a Lecturer was negotiated while she under a disability suffering from a medical condition relating to her pregnancy and awaiting an operation on her spine for a tumour. Furthermore she suffered discriminatory treatment on her return to work in relation to her conditions of employment and there was no clarity about her role all resulting in her status being diminished within the Department. I accept that the discriminatory treatment she experienced had a detrimental impact on her as well as on her career. I am also guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204, 26/7/2006 P. 0023 - 0036.
(iii) The maximum award I can make under Section 82(4) is two years pay for discriminatory treatment. The complainant’s salary is €81,000 and as I have cited above that the EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. Therefore in calculating the redress and taking into account all the circumstance of the case, I consider that an award in the amount of €81,000 is appropriate in relation to the discriminatory treatment. In accordance with my powers under section 82 of the Employment Equality Acts, I order the respondent to pay the complainant €81,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.
28th May 2014