DEC-E2014-078

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2014-078

Micheline Sheehy Skeffington

(represented by Claire Bruton B.L. instructed by D.M O’Connor Solicitors)

versus

National University of Ireland, Galway

(represented by John Brennan, Irish Business and Employers Confederation)

File Number: EE/2009/746

Date issued: 13th November 2014

Keywords: Employment Equality Acts, Gender, Access to Promotion, Indirect discrimination

Dispute

1.1 The case concerns a complaint by Ms Micheline Sheehy Skeffington that National University of Ireland, Galway (NUIG) discriminated against her on the grounds of gender regarding access to promotion to Senior Lecturer contrary to Section 8(1)(d) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the Acts’].

1.2 The complainant referred a complaint under the Act to the Director of the Equality Tribunal on 7th October 2009. On 10th August 2012 in accordance with his powers under Section 75 of the Act, the Director delegated this case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and as required by Section 79(1) of the Act a joint hearing commenced on 7th September 2012. Following receipt of redacted application forms for the 2008-2009 competition the hearing resumed on 21st and 22nd October 2012. I would like to express my gratitude to whoever went through the thirty voluminous application forms and obscured the personal information (over 2000 pages) which greatly assisted this investigation. The last piece of correspondence requested by me was received on 4th July 2014.

Summary of the complainant’s case

2.1 The complainant submits that the application process to Senior Lecturer in NUIG is weighted against women. She is a College Lecturer (above the bar) in the School of Botany in NUIG since 1990. Her academic background is that she won an entrance exhibition award to Trinity College Dublin in 1972, a Foundation Scholarship there in 1975 and graduated with B.A. in Botany from TCD in 1976. She was awarded a French Government Study Scholarship and studied at Université de Montpellier where, in 1977, she obtained a Dipome d’Edudes Appfondies (equivalent of a Masters in Science) for her research on vegetation at the edges of saline lakes of the Rhone delta. She joined NUIG (then UCG) as a Junior Lecturer (below the bar) in 1980. She obtained her Ph.D. in 1983. Dr Sheehy Skeffington has written or edited three books, published thirty two peer-reviewed papers – eighteen of which were in international journals including high-impact journals in her field of study like Biological Conservation and Forestry & Ecology Management. She is a member of the editorial board for the Royal Irish Academy’s journal Biology and the Enviroment. She solely supervised six PhD theses to completion and co-supervised four more. She also supervised five MSc theses (two on her own and three she co-supervised). She has obtained research funding of over €1.4 million. She was appointed to the Heritage Council in 1995 for a five-year term and was Chairperson of the Wildlife Committee for a year there. She was involved in setting up the Environmental Science degree and the MA in Rural Development in NUIG and lectured in both. She submits that she is very committed to outreach work and collaborates with policymakers (some of whom are former PhD students of hers) and the wider community to ensure conservation principles gain traction in the non-academic world.

2.2 She maintains an interest in tropical biology having been a Visiting Scientist in Indonesia in 1984-85. She is a Council Member and only Irish representative on the Tropical Biology Association (Headquarters in the University of Cambridge). In his reference for this competition, her head of Department (Professor A) described ‘Dr Sheehy Skeffington is widely recognised as one of Ireland leading field botanists, an experienced ecologist and a committed conservationist’. Her external referee pointed out that many types of ecological research require several years to complete (i.e. they are not done in laboratory conditions but have to follow nature’s cycles) so final publication rates for ecologists are consequently lower in numerical output than other areas of science. Therefore, he points out that ecologists’ works have to be considered from the point of view of quality rather than numerical quantity. In his reference, he said ‘her publications are of internationally high standard’.

2.3 Dr Sheehy Skeffington states that she loves teaching and research and believes that she is good at both. She lectures to all undergraduate years of Science students. She submits that she co-ordinates all field trips in relation to botany. She is Year Head for 4th year students. As part of her application for this competition, she submitted the extern examiner’s report for the Department of Botany for the year 2004-2005:

“I was greatly impressed by the degree of personal and pastoral care the students had received during their degrees…The small group of staff responsible for teaching this degree should be congratulated on the results achieved

2.4 The complainant brought Professor A (Emeritus Professor of Botany) as a witness to the hearing. He gave evidence at the hearing that she attracted the best MSc and PhD students because she put such effort into mentoring them. Dr Sheehy Skeffington also brought a former PhD student of hers who is now Head of Biodiversity in Department of Arts, Heritage and the Gaeltacht as a witness. He became emotional in the hearing when talking about Dr Sheehy Skeffington’s contribution to his choice of career path. He gave direct evidence that her lectures were inspirational and her emphasis on fieldtrips taught him that ecology was a living science. He submits that Dr Sheehy Skeffington is more concerned about science being translated into policy than glory-seeking for herself.

2.5 She became eligible to apply for promotion to Senior Lecturer when she reached the top point of the College Lecturer scale. Dr Sheehy Skeffington was not shortlisted for the first competition she applied for – the 1998-1999 round but submits she was not very disappointed at that time as she did not expect to get it on her first attempt as she is aware that the standard is high. She applied again in 2001-2002 round and again was not shortlisted. In the 2006-2007 competition, she was shortlisted and interviewed but did not get on the panel. However, she submits that she felt compelled to complain about the 2008-2009 competition when only one woman was promoted. She maintains that this confirmed her suspicion that there was a gender bias regarding promotions in NUIG.

2.6 Promotion to Senior Lecturer was assessed on three criteria:

• Research and Scholarly Standing
• Teaching and Examining
• Contribution to School, University and Community

The relevant circular stated ‘Candidates would be expected to demonstrate achievement in all three areas but may, in exceptional circumstances, be promoted on the basis of excellence in two’. Candidates were asked to submit an application form with names of three referees - two external and one internal. The application form was sent to Head of School to give a view on the merits of the application. Candidates were then shortlisted and interviewed by either of two boards:

(i) Arts, Social Sciences, Celtic Studies, Business, Public Policy and Law

(ii) Science Engineering and Informatics, Medicine, Nursing and Health Sciences (this was the Board that interviewed Dr Sheehy Skeffington)

With each candidate invited to interview, the Head of School recommended an external interviewer – in Ms Micheline Sheehy Skeffington’s case – a Senior Conservation Scientist with the National Parks and Wildlife Service (Dr B).

2.7 The complainant submits the interview was a bizarre affair. There were seven people on the other side of table. Only one woman was on the interview panel (Professor C) and the complainant submits she remained silent and passive throughout. The complainant brought Dr B as a witness to the hearing and he gave evidence that some of the interviewers only arrived a minute before the interview and that there was no discussion of Dr Sheehy Skeffington’s application before the interview or about what questions should be asked. He also gave direct evidence that he sought marking schemes and guidelines prior to the interview, which would be standard practice in his parent Government Department, but he received no reply to his email. When he tried to argue in the post-interview discussion that Dr Sheehy Skeffington was one of the leading plant ecologists in Ireland, he submits that the other members talked over him. Dr B was the only person with specialist expertise in the complainant’s area of work but the committee challenged his mark and the collective mark was reduced significantly. He maintains that they said he did not know the standard of the other candidates and they did. Dr B stated he has sat on many interview panels and this one fell far short of best practice. He was anxious to add that he is not a personal friend of Dr Sheehy Skeffington but felt an injustice was done in her not becoming empanelled.

2.8 The complainant submits that the panel of successful candidates was supposed contain fifteen people roughly half from Arts, Social Sciences, Celtic Studies, Business, Public Policy and Law and half from Science Engineering and Informatics; Medicine, Nursing and Health Sciences. Not one woman was among the first fifteen on the panel. The complainant submits that the University was embarrassed by this and extended the panel so as to include one woman. She submits this was merely a figleaf – a token gesture to disguise the institutional sexism in the University.

2.9 Only one out of seven female shortlisted applicants was empanelled. Sixteen out of twenty-three male shortlisted applicants were successful. She also points out that ALL women were in the lower half of shortlisted applicants. No woman from the Science constituency was promoted.

2.10 On the subject of shortlisting, she points out that there were forty seven valid applications in the 2008-2009 competition. Twenty three out of the thirty two male applications were shortlisted while only seven of the fifteen female applicants were shortlisted i.e. proportionately more women than men did not even get past the first hurdle. She also submits that fewer eligible female lecturers even apply for Senior Lecturer. Dr Sheehy Skeffington argues this is not surprising since the odds are stacked against them.

2.11 The complainant came joint 21st out of a shortlist of 30. She sought feedback which, among other things, said: ‘No formal evaluation of teaching’. However, in her application she did submit both collated statistics and individual answers from student evaluations. She submits that she had previously sought advice on her teaching portfolio from the Director of the Centre of Education and Learning (CELT) in NUIG and he praised her approach. This is in stark contrast to Candidate 7 who received a higher score than the complainant in relation to Teaching even though he did not submit a CELT evaluation either and had less than half of the teaching undergraduate hours than the complainant had.

2.12 She submits the interview board ignored her role roles as a visiting lecturer at two universities and that she was a member of a Board of Assessors for a Senior Lecturer for a French University. She appealed the decision and the appeal was heard by the Registrar (and Deputy President). Dr Sheehy Skeffington maintains that he admitted the panel was mistaken that she did not use formal evaluation of students but he did not alter her mark under Teaching and Examining to reflect that correction. He also confirmed this in direct evidence at the hearing. She submits the appeal was merely a tickbox exercise. She disagrees with the assertion by the respondent that her application was weaker in comparison to other candidates and quotes the palaeontologist, Stephen Jay Gold ‘Few tragedies can be more extensive than the stunting of life, few injustices deeper than denial of an opportunity to strive or even to hope by a limit imposed from without but falsely identified as lying within'[1].

2.13 To demonstrate that there is a crowding of women at the bottom and middle in NUIG, Dr Sheehy Skeffington submitted the following table[2]. It is derived from a report the University compiled following disquiet about the lack of female representation in on the 2008-2009 Senior Lecturer panel:

Grade distribution by gender in NUIG

She submits that there is a funnel effect against women once they hit the age group where women traditionally have caring responsibilities e.g. child-rearing years or caring for elderly parents.

2.14 She submits that four candidates were ineligible for promotion as they had not reached the maximum point of College Lecturer scale and therefore should not even have reached the shortlisting stage. The complainant points out that Doherty & Cooke report specifically recommended that leadership roles (Head of School etc.) should be allocated on the basis of open, transparent competition. She submits that the failure to do this favours the ‘boys club’ and disadvantages women when it comes to giving examples in the ‘Contribution to School, College and Community’ heading. The report also recommended gender awareness training for interview board members and career-planning workshops for women[3]. These have been implemented subsequent to the lodging of this case to the Tribunal. She also advances the argument that the over-emphasis on research to the detriment of teaching is deeply gendered. Dr Sheehy Skeffington maintains that women carry the bulk of the teaching load in the university allowing the men to focus on their research and therefore are promoted more quickly.

2.15 One of the criteria for promotion to Senior Lecturer was ‘Teaching: minimum of 150 undergraduate and postgraduate scheduled student contact hours per annum over at least three years’. She points that three successful male candidates (Candidates 4, 6 & 7) had significantly less than the minimum requirement and yet got a higher score than her (who had between 175 and 212 teaching hours depending on the year) under the ‘Teaching and Examining’ heading. She points out that Candidate 6 had only 67 teaching hours and the interview board acknowledged this in their feedback 'small number of undergrad lectures though this will increase in future’. She submits this is a classic case of men being promoted on their potential and women being promoted on their past accomplishments.[4]

2.16 In the aforementioned Doherty & Cooke report, 70% of the 212 NUIG academics surveyed believed that the Research criterion is valued over ‘Teaching and Examining’ or ‘Contribution to School, College and Community’ criteria[5]. She submits that the marking bears this out – the average score for successful candidates was 86 for research versus 84 for the other two categories She maintains this is in stark contrast to the stated objective in the relevant circular advertising the competition for promotion to Senior Lecturer ‘The primary objective of the scheme is to promote on the basis of performance and merit assessed according to criteria which reflect the University’s educational mission including especially its service to students’ (complainant’s emphasis). She maintains the ‘private-sectorisation’ of university life with the over-emphasis on obtaining research funding and self-promotion to the detriment of educating students favours men over women. Dr Sheehy-Skeffington maintains that many of successful candidates supervised less PhDs, obtained less research funding and have written less peer-reviewed articles than her and yet obtained higher marks under the Research heading. She submits this discrimination is compounded by the predominance of men on promotion boards. Dr Sheehy Skeffington pointed out the same woman Professor C was on the interview panel that interviewed her for 2006-2007 round as well as the 2008-2009 round and she was the only woman on the interview board of seven people. She submits this is tokenism at its worst.

2.17 Dr Sheehy Skeffington submits she was motivated to take this case because of her family’s long history of dealing with equality issues. She points out that her surname comes from when her grandparents took each other’s name on marriage in 1903 i.e. Francis Skeffington became Francis Sheehy Skeffington and Hannah Sheehy became Hannah Sheehy Skeffington as a symbol of the equality in their relationship. She maintains every generation has their own equality battles and this is hers. Dr Sheehy Skeffington submits that she is not seeking positive discrimination – only a level playing field.

Legal submissions

2.18 The complainant submits that there is a continuum of discrimination in the senior lecturer promotion process from both the 2007 and 2009 competitions or alternatively that the respondent maintains a discriminatory regime, rule practice or principle which has a clear and adverse impact on the complainant because of her gender. The decision of Waldron v North Western Health Board,[6] Gillen v Department of Health and Children[7] and Hurley v Cork VEC[8] and O’Brien v O’Callaghan hotels[9].Therefore, both competitions should be considered. She submits that there was a link between both competitions as the same woman sat on both interview panels. Regarding having only woman on the interview panel, she cites Gleeson v the Rotunda Hospital and the Mater Misericordiae where the Labour Court found ‘the composition of such a board does make a case for a prima facie finding of discrimination’[10].

2.19 The complainant submits that the applications forms for the candidates for this competition demonstrate that the criteria were employed in an inconsistent manner and that the process lacked transparency. There was no pre-interview meeting and no training for the interview board. Interview notes were not kept in a central file. The external interviewer was not allowed to make a worthwhile contribution to the process. All of this took place against a background of significant statistical disparity between women and men holding senior positions in University.

2.20 Dr Sheehy Skeffington maintains she was excluded from the informal male networks which mentored male applicants which gave them an unfair advantage. e.g., the men were told to get the CELT evaluation of teaching done and focus on research rather than teaching as well as being given management roles.

2.21 The complainant was criticised for the lack of formal evaluation of teaching even though the student evaluation that she submitted was approved by the Director of CELT but candidate 6 also used a different assessment form that the CELT evaluation and was not marked down for it i.e he got a higher score for teaching than the complainant. The complainant submits that this demonstrates direct discrimination - ‘the application of different rules to comparable situations’ as per Finananzamt Koln-altstadt v Roland Schumacher[11].

2.22 The complainant cites Galway City Partnership v O’Halloran where the Labour Court held that: ‘Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board[1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.’[12] Also cited are Horgan v DCU[13] and Johnston v Louth VEC[14] . The complainant submits that a case that mirrors this instant case is South Eastern Health Board v Burke. Like academia, in nursing there is a vertical occupational segregation i.e. there is substantial statistical imbalance between female nurses at entry level and at senior management level. In that case, the female complainant (who was already Acting Up in this role for this year) got 23% lower score than the male successful candidate who had no such experience. Even though one of the desirable criteria was a qualification in Gerontology, Ms Burke got no marks for this. [15]

2.23 The complainant also submits that she was indirectly discriminated. Indirect discrimination is defined in Section 22 of the Acts:

—(1) (a) Indirect discrimination occurs where an apparently

neutral provision puts persons of a particular gender

(being As or Bs) at a particular disadvantage in

respect of any matter other than remuneration compared

with other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be

treated for the purposes of this Act as discriminating

against each of the persons referred to (including A

or B), unless the provision is objectively justified by

a legitimate aim and the means of achieving that aim

are appropriate and necessary.

The complainant submits that men spend more time on research than women, women care more about student welfare than men and are given the biggest teaching burden and that men get management roles on a ‘nod and wink’ basis that this is indirectly discriminatory against women. She submits the Doherty & Cooke report as evidence of this. She also states the Labour Court case Inoe v NBK Designs Ltd is authority for the Tribunal using its own experience: ‘It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of the Court by drawing on their own knowledge and experience.’[16]

Summary of the respondent’s case

3.1 The respondent utterly refutes any allegation of discrimination on the ground of gender. They submit their processes are fair and transparent. NUIG maintains they are blessed with a high standard of lecturers and the internal recruitment campaign to Senior Lecturer is a highly competitive process. Dr D (who was on the rapporteur on the interview board) gave cogent evidence that he only obtained Senior Lecturer on his third attempt. He submits that he learned from the feedback given on the occasions he failed and worked on the weaknesses in his application.

3.2 Regarding the rough note Dr D wrote during the interview process ‘no formal evaluation of teaching’ the respondent maintains that he was correct. The complainant did not undertake an independent evaluation of her teaching. However, the Registrar did acknowledge during the appeal process that the complainant did submit an evaluation of her teaching. NUIG submit her application would have been enhanced had she submitted a grouped evaluation conducted by CELT but submits that it is not discriminatory for choosing not to mention this in their guidelines as it applies to men as well as women. NUIG submit that she got a high score for teaching and examining (79) as the average score for the Science constituency was 82.23.

3.3 Regarding not being given credit for the amount of fieldwork the complainant does, the respondent points out that Candidate 1 (i.e. first on the panel) is an archaeologist who would also do significant amounts of fieldwork.

3.4 The respondent points out (which the complainant acknowledges) that no discriminatory question was asked at interview. The respondent states it is regrettable that the other member of the Science constituency board (who was female) was unavailable on the day of Dr Sheehy-Skeffington’ interview. NUIG submits that it always aims for gender balance on interview boards. Professor C, who was the sole woman on the interview board that day, gave direct evidence at the hearing that this was the only time she was described as a ‘passive female’ and that she was not a designated questioner for that interview. When I asked about the complainant’s theory that the teaching burden falls on women allowing the male lecturers to focus on research, she replied that she encourages all her academic staff (both men and women) to be research-active.

3.5 NUIG points out that Dr Sheehy Skeffington’s form was a good application and she was only six marks off being empanelled. NUIG denies that extra weighting was given to the Research criterion. In direct evidence, the Registrar stated that Dr Sheehy Skeffington had not published in the highest impact journals in her area e.g. Nature or Science. The respondent readily admits that management roles and candidates who held positions of responsibility on specialist bodies ensure a higher mark under the ‘Contribution to School University and Community’ heading. However, NUIG denies that ‘acting up’ vacancies such as Head of School etc. are allocated in a discriminatory way.

3.6 In direct evidence, Dr D said that all candidates select referees who are likely to give a favourable reference so less credence is given to references as they are likely to be positive. The application form and interview were the most important aspects in assessing candidates.

3.7 The respondent acknowledges that the complainant has successfully supervised many post-graduates to completion. However, the NUIG Guidelines take accounts of this. A satisfactory record in the Science constituency would be a minimum of three Doctorates or five Research master or fifteen Masters (minor) thesis. It is reduced for the Arts constituency. An excellent record would be a significant increase on this. Three doctorates are not a minimum requirement as the complainant suggests. The guidelines are merely that – guidelines.

3.8 Regarding the four candidates who the complainant alleges were ineligible, she was wrong about three candidates i.e. they had the correct amount of service to apply. In relation to Candidate 10, the respondent acknowledges the complainant is technically correct. All candidates should have been eligible before the closing date as per the guidelines. However, the Associate Secretary in charge of running the competition sent a memorandum to a member of his staff stating that all candidates are eligible who would reach the top of the scale on 1st January 2009 (rather than the closing date of 31st October 2008 as stated in the Circular). However, the respondent states this administrative error affected all candidates i.e. men and women.

3.9 NUIG disputes that men teach more than women in the University do. From their workload model, they compiled data that in the School of Life Sciences (which is the complainant’s school) the average number of hours that women spent teachings was 131 while men spent 196.

3.10 The respondent denies that the appeal process was a tickbox exercise. NUIG submits that it was taken very seriously. The Registrar met with the complainant and listened to her concerns and the Appeals board met on 9th September 2009. In the minutes of that meeting it is pointed out that there is ‘no requirement that there be any gender balance among those promoted’.

Legal arguments

3.11 The respondent submits that the 2007 competition is out of time. It was extremely onerous on them to supply the obscured applications of the 2008/2009 competition and they submit it would be ludicrous to expect the same for a competition that happened five years before the hearing with a differently constituted interview board some of whom have retired since. They submit that Dr Sheehy Skeffington did not submit a grievance to the respondent immediately after the 2007 competition.

3.12 NUIG cited UCD v Dr Myles Rath: ‘it is not for the Court to form its own view on the merits of the complainant or his suitability for promotion. Rather it is to consider if the respondent has established that the decision which was taken by UCAATP was untainted by age discrimination. The Court concludes that the decision was not so tainted and any subjective view that may have as to the fairness of the decision is irrelevant.’[17] The respondent also refers to Galway City Partnership v Josephine O’Halloran[18].

Conclusions of the Equality Officer

Preliminary issue – time limits

4.1 In the circumstances of this case, I am in agreement with the respondent that the 2006-2007 competition is time-barred. The complainant should have initiated a complaint within six months of being told she was unsuccessful in the 2007-2008 competition to include it in this case. In coming to this conclusion I am guided by the Labour Court decision Department of Justice Equality and Law Reform v A Worker which also deals with promotion competitions: ‘Having examined the submissions of both parties on this point the Court finds that the competitions were independent of each other. The Complainant did not establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions.’[19] Dr Sheehy-Skeffington’s complaint regarding the 2008-2009 competition is within time.

Access to promotion – direct discrimination

4.2 Section 8 prohibits discrimination on any of the nine grounds specified in the Act in relation to promotion. In O’Higgins v UCD the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:

‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts

4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result

6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

8.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’[20]

4.3 Having read the extensive submissions from both sides and listened to the evidence of many witnesses, I am satisfied that the complainant has established the following:

• Although, on paper, the promotion to Senior Lecturer appears to be a fair process with definitive criteria, its implementation fell short of best practice in recruitment. There was no training for interviewers (in the Employment Equality Acts or otherwise), there was no pre-meeting to discuss each candidate nor were questions agreed beforehand and notes were only retained by the rapporteur. A collective mark was given. The external interviewer’s (and only expert in the complainant’s field of study) suggestions were ignored. Prior to the interview, Dr B requested marking schemes but nobody from NUIG responded which is discourteous as well as highlighting the ramshackle approach to the process.
• Worryingly, one candidate (male) promoted was not even eligible for the competition. I do not accept the respondent’s contention (Paragraph 3.8) that this was gender-neutral. All female applicants short-listed met the requirement of having enough service. Clearly, not all men did. 53% of female applicants were rejected at the shortlisting stage. Only 28% of male applicants were. Through this administrative mistake, a man was erroneously empanelled. This had serious implications for the other candidates. He took up a place in the panel which could have gone to either a man or a woman.
• In O’Higgins v UCD the Labour Court found: ‘The gender composition of the UCAATP must also give rise to considerable disquiet. It is now universally accepted that an appropriate gender balance within selection boards is an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment. That is particularly so in professions and occupations in which women have traditionally been underrepresented.’[21] On this topic, in the letter (undated) from the Registrar to the complainant following her appeal, he wrote ‘The panels are gender balanced and operate in a completely objective manner’. I realise that a Registrar of a University is a very prestigious and busy role and I do not wish to be overly pedantic. However, there is an important difference between gender representation and gender balance. There was only one woman on Dr Sheehy Skeffington’s interview board of seven people. That is not gender balance. While I have no jurisdiction under the Universities Act 1997, I note that 12 (k) of that Act states that one of the objects of a university shall include ‘to promote gender balance and equality of opportunity among students and employees of the university’.
• The Registrar was on Dr Sheehy Skeffington’s interview board and was also involved in hearing her appeal. It would have been preferable if somebody independent of the interview process heard the appeal. There was a discrepancy of evidence between him and Dr D (the raportuer) at the hearing. The Registrar maintained he asked Dr D to alter Dr Sheehy Skeffington’s mark to take account of the evaluation of her teaching that she compiled. Dr D did not recall this conversation. Irrespective of whether or not the conversation took place, Dr Sheehy Skeffington marks were not changed on appeal and she remains a College Lecturer.
• The complainant is correct that three successful male candidates (Candidates 4, 6 & 7) had significantly less than the minimum requirement of contact hours (as opposed to postgraduate supervision) with students and yet got a higher score than her under the Teaching and Examining heading.
• No candidate (successful or unsuccessful) has supervised more PhDs to completion than the complainant.
• Regarding ‘Contribution to School, College and University’ Candidate 14, by his own admission, says he does not have much interaction with colleagues preferring to focus on research and gave few examples of extracurricular responsibility. Yet he received three marks more than the complainant under this heading. Candidate 16’s own referee said in his recommendation that his ‘contribution to School, University and Community is somewhat measured. The contributions that he does make are tightly aligned with the priority he gives to research.’ Candidate 16 also got a higher mark than the complainant under this heading. What makes this anomalous is that only two candidates have served on a statutory body – namely the Heritage Council – the candidate who came first and the complainant. That two other candidates who do not focus their energy outside of their research get a higher mark than the complainant under this heading is an example of the same criteria being applied differently to different people. Candidate 1 received 92 marks under this heading for being Chairperson of the Heritage Council even though he was only appointed to the Council four months previously. While the complainant was merely Chairperson of Wildlife Committee for a year, she did serve five years on the Council. She received 80 marks. Even allowing for other things being taken into account for both candidates, twelve marks seems a disproportionate difference between the two under this heading.

4.4 While none of these findings would be determinative on their own, cumulatively I am satisfied that the complainant has established a prima facie case of discrimination. Now I will turn to the rebuttal:

•  I am in full agreement with the respondent that the amount of postgraduate theses supervised is a guideline rather than a hard criterion. However, length of service and minimum teaching requirements are essential criteria (by any reading of the circular) and these were ignored in relation to some of the successful candidates – all of whom were men. The only woman empaneled more than met the minimum criteria.
• The respondent put huge emphasis on the high standard of applicants. Nevertheless, only one candidate did not possess a PhD (which I would have thought was de rigeur for a Senior Lecturer in a leading University in the 21st century) and he came first.
• NUIG said a weakness in the complainant’s application is that she did not have articles published in the highest-impact journals. However, from a cursory look, many of the successful candidates did not possess high H-indexes either. Significant marks seemed to be given under the research heading for attracting funding for which the complainant had a fair record. However, others who worked in the areas, which attract funding easier, fared better. It is legitimate for a university to put an emphasis on candidates obtaining funding but this should be stated clearly in the guidelines.
• In this type of complaint, it is important to establish that a factor in the complainant not being promoted is because of the discriminatory ground rather than a personal dislike. Again, I agree with the respondent that candidates choose referees who will give them a positive recommendation. In general, the references were positive. However, none were as glowing as the references for the person (female) who came 26th out of 30. Her former Professor at a prestigious American University (It is ranked 174 in the World University rankings while NUIG is ranked 287) ‘I rank her as one of the best two or three best students – possibly the best – whom I have trained at [his University].’ Her internal referee who gave lukewarm references to other candidates stated ‘No doubt there will be applicants for promotion to SL who have strong claims arising from excellence in one or perhaps two of the key areas for assessment. But I would doubt very much if there are many other applicants whose excellence in performance has been as sustained and impressive as [Candidate 26] across all the areas research, teaching, service to the University and to the wider community under which these applications for promotion are to be assessed. I support her application for promotion warmly and without reservation.’ It is worth noting again that this candidate came fourth last – see Paragraph 4.6 also.
• Perhaps the most significant frailty to the respondent’s rebuttal is the statistical evidence. Men are in the minority in the College Lecturer grade (40%) but, significantly, that statistic is almost inverted when it comes to the next promotional grade - 61% of Senior Lecturers are men. The attached table shows the internal promotions to Senior Lecturer from 2001 to 2009:

It is clear from the above table that male applicants have a one in two chance of being promoted to Senior Lecturer while women who apply have less than a one in three chance of the same promotion. For these reasons, I am satisfied that the complainant has established a prima facie case of direct discrimination and the respondent has failed to rebut it.

Indirect discrimination

4.5 The complainant states that the following are indirectly discriminatory against women - that men spend more time on research than women; women care more about student welfare than men; women are given the biggest teaching burden and that men get management roles on a ‘nod and wink’ basis. She cites NBK Ltd v Inoe. However, in that case the complainant provided Labour force survey data to show that women work part-time more often than men do. Based on my own experience, I cannot categorically say any of the four sweeping generalisations by the complainant are certainly true. Neither does Doherty & Cooke nor the statistics provided by the respondent in Paragraph 3.9 provide strong proof that is or is not the case. Deeper research will have to be done. These arguments represent a misunderstanding of indirect discrimination and therefore fail.

4.6 However, I find that there is one apparently neutral provision that puts women at particular disadvantage. The application form to Senior Lecturer asks people to nominate when they were on maternity leave or other unpaid leave so that it could be discounted. Male applicants left this blank. The complainant referred to caring responsibilities for her mother in the 1990s, Candidate 24 mentioned adoptive leave taken, Candidate 26 referred to parental leave and Candidate 28 mentioned maternity leave and previously job-sharing. Of the seven female shortlisted candidates three did not refer to caring responsibilities – candidate 17 (only successful female) Candidate 19 and Candidate 21 – all of whom were the highest placed women in the competition. I accept the purpose of asking this question on the form had a legitimate aim in that it was intended to make allowances for employees when they are not available for work. In reality, it had the opposite effect i.e. it was discriminatory. I cannot escape the conclusion that the majority of female applicants drawing attention to their caring responsibilities outside the workplace disadvantaged them against the male applicants. Therefore, the means chosen was neither appropriate nor necessary and so cannot be objectively justified. Therefore, I find the respondent has indirectly discriminated on the ground of gender in relation to this issue.

Decision

5.1 I have concluded my investigation of Dr Sheehy Skeffington’s complaint and hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the respondent discriminated against the complainant on the grounds of gender regarding access to promotion. In considering redress, I am guided by Article 25 of the recast Directive which states penalties must be effective, proportionate and dissuasive[22].

5.2 In accordance with Section 82 of the Act, I order the respondent to:

(a) Promote Dr Sheehy Skeffington to Senior Lecturer from 1st July 2009 and that she be paid in full the necessary adjustment in salary and any other benefits applying to the post accruing with effect from that date. This may represent income for tax purposes.

(b) Award the complainant €70,000 which represents approximately a year of her current salary. This part is redress for the infringement of Dr Sheehy Skeffington’s statutory rights and, therefore, not subject to income tax.

(c) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to Promotion to Senior Lecturer to ensure that they are in compliance with these Acts with particular reference to the gender ground. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts.

_______________

Orlaith Mannion

Equality Officer

 
'Footnotes'

[1] From the Mismeasure of Man quoted in ‘Does Gender Matter?’ Nature Vol. 442 (13 July 2006)

[2] Professor Liz Doherty & Aoife Cooke The Report of the Working Group on Academic Career Advancement in NUI Galway May 2011 pages 3-4.

[3] Ibid p. 16

[4] Theory derived from Joanna Barsh and Lareina Yee Unlocking the full potential of women in the US economy (McKinsey 2011)

[5] Doherty & Cooke p.7

[6] DEC-E2003-021

[7] DEC-E2003-035

[8] EDA1124.

[9] DEC-E2012-010

[10] DEE003

[11] Paragraph 30 ECR I-225 referred to in Rasaq v Campbell Catering Ltd EED048

[12] EDA077

[13] EDA0715

[14] EDA0712

[15] EDA041

[16] EED0212

[17] EDA119

[18] EDA077

[19] EDA1422

[20] EDA131 This determination by the Labour Court was upheld by Cooke J in the High Court [2013] IEHC 508

[21] ibid

[22] 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