ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013590
Pat O Donoghue SIPTU
Kevin Langford & Sarah Faulkner of Arthur Cox Arthur Cox, John Doyle, Daire Keogh, Gemma Boyne, Tiernan Doherty
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 12/02/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is employed as a Lecturer since 2007. She is paid €70,531 per annum. She has claimed that she was discriminated against while seeking a promotion on grounds of her gender and disability.
Summary of Complainant’s Case:
The complainant submits that there exists a disparity between her output and that of a successful male colleague in respect of the same promotional competition. The complainant is in a position to compare her application with a colleague as a matter of chance and as such draws the reasonable conclusion that there exists some unfairness in respect of the process and in particular where her colleague was a successful male candidate. In response to a data protection request by the complainant she has discovered that she had been ranked as 7th from among the female candidates. It appears that the respondent since 2017 have been operating a quota system whereby out of six potential promotional places 50% would be reserved for Female candidates and 50% would be reserved for Male. In this regard the complainant having not come in the top three ranking of female candidates was unsuccessful.
It is the complainant’s submission that the individual scoring and ranking of candidates is completed at Faculty level with the results then forwarded to the APC or “Academic Promotion Committee”. It is submitted that the ‘gender quota’ is applied at this secondary level and that when scoring is being awarded at faculty level this is on the basis of merit. The complainant achieved a rank of 7th at faculty level and ranks of between 5th and 13th at APC level.
While the complainant is not privy to the scores achieved by the successful candidates she submits that the referenced disparity in her application and the application of a successful male colleague amount to an inference of discrimination and so establish a prima facie case of gender discrimination. The complainant notes that while she advances her complaint based on the information available to her the respondent have unrestricted access to the full details of the 2017 competition. The complainant submits that where the submitted facts establish a prima facie case the burden must shift to the respondent to rebut this inference given its unequal position as regards access to the full details of the operation of the ‘gender quota’ system.
In relation to the presence of a gender quota the complainant references the case of Abrahamsson and Anderson C-407/98 where some consideration was given to the matter of gender quotas in respect of a competition for promotion in a Swedish University. While this reference to the ECJ primarily concerns whether a national rule in question was in breach of EU law it also points to the general requirement of proportionality as an element of ‘positive discrimination measures’. The court in its conclusions provided the following;
1 Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on
the implementation of the principle of equal treatment for men and women
as regards access to employment, vocational training and promotion, and working conditions and Article 141(4) EC preclude national legislation under which a candidate for a public post who belongs to the underrepresented sex and possesses sufficient qualifications for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where this is necessary to secure the appointment of a candidate of the under-represented sex and the difference between the respective merits of the candidates is not so great as to give rise to a breach of the requirement of objectivity in making appointments.
2. Article 2(1) and (4) of Directive 76/207 and Article 141(4) EC also preclude national legislation of that kind where it applies only to procedures for filling a predetermined number of posts or to posts created as part of a specific programme of a particular higher educational institution allowing the application of positive discrimination measures.
3. Article 2(1) and (4) of Directive 76/207 does not preclude a rule of national case-law under which a candidate belonging to the under-represented sex may be granted preference over a competitor of the opposite sex, provided that the candidates possess equivalent or substantially equivalent merits,
where the candidatures are subjected to an objective assessment which takes account of the specific personal situations of all the candidates.
4. The question whether national rules providing for positive discrimination in the making of appointments in higher education are lawful cannot depend on the level of the post to be filled.
In the instant case it is submitted that where a clear disparity in the complainant’s application and successful male colleagues may be established that the operation of the respondents ‘gender quota’ may not be deemed proportionate. This in particular in light of the above judgment which in the context of that case the court required that ‘candidates possess equivalent or substantially equivalent merits’
In conclusion it is submitted that the complainant presents facts both under the disability and gender ground which attract an inference of discrimination. Where the legislation provided for a shifting burden of proof on the establishment of a prima facie case it is submitted that the burden of proof should rest with the respondent to rebut this inference.
Summary of Respondent’s Case:
This is a claim of discrimination on the grounds of gender and disability arising from an application for internal promotion to the grade of Senior Lecturer in the University. On 15 March 2017 the Complainant applied for promotion to the grade of Senior Lecturer. The University received a total of 50 applications for promotion to Senior Lecturer across all five faculties. This included 14 applications from within the Complainant’s faculty. Each faculty has a Faculty Promotions Committee. For ease of reference the Faculty Review Panel for the Complainant’s faculty is referred to in these submissions as the “FRP”. The FRP met on 8 June 2017 and assessed all 14 applications from within the Faculty, including the Complainant’s application. The FRP was comprised of 17 members (eight women and nine men). The FRP ranked all 14 applicants. The Complainant was ranked seventh out of 14 applications in her Faculty. 12 of the 14 applicants from within the Complainant’s Faculty were deemed eligible for promotion, including the Complainant. The 12 applications were sent forward to the Academic Promotions Committee (APC) for further assessment. The APC met to assess applications for promotion to Senior Lecturer on 21 September 2017. There were 15 members of the APC including the Chair. The membership of the APC was made up of 10 women and five men. On 22 September 2017 the Complainant was notified by the University that her application for promotion to the grade of Senior Lecturer was unsuccessful. On 3 October 2017 the Complainant met with the Chair of the FRP in order to obtain feedback. On 27 October 2017 an email was sent to the Complainant summarising the feedback given at the meeting. On 5 October 2017 the Complainant notified the Respondent that she intended to appeal the outcome of the application process “on the basis of an irregularity in the procedures in relation to the scoring of my application under Research and Service”. On 25October 2017 she was requested that she set out in full the grounds of her appeal. On 3 November2017 the Complainant wrote outlining her grounds of appeal in detail. On 12 January 2018 the Respondent wrote to the Complainant outlining the decision in relation to her appeal.
By way of further background, the Complainant had previously applied for promotion to Senior Lecturer in 2013. She was not deemed eligible for promotion and therefore was precluded from applying again for promotion to this grade for a period of two years. The Complainant applied again for promotion in 2015. Whereas she was deemed eligible for promotion i.e. she met the threshold for promotion, she was not successful in her application. The Complainant applied again for promotion in 2017, which is the subject of the instant case.
The University is committed to rewarding, retaining and attracting staff of outstanding quality who perform in ways that contribute to its reputation both nationally and internationally. High performing academic staff are the cornerstone of the University and a range of strategies are available to recognise, reward and retain such staff appropriately. Promotion, through an effective and rigorous process, is one of these strategies and one of great importance.
The University’s academic grading system consists of Lecturers (now called ‘Assistant Professors’), Senior Lecturers (now called ‘Associate Professors’), and Professors. Internal promotional rounds take place periodically, usually each year. In these rounds, applicants from across the University compete with each other for promotion for which they are rated, to ascertain if they are suitable for promotion.
The application process for promotions is determined by the University’s Policy, Procedures, Criteria and Guidelines for Promotion to the Grade of Senior Lecturer (the “Promotions Policy”). The current Promotions Policy was approved by the University’s Academic Promotions Committee and is published on the University’s website. The Promotions Policy provides information and guidance to applicants in relation to eligibility, the application process and the method of assessment for promotion to Senior Lecturer, the process to which this claim relates. Applicants for promotion are assessed and scored across the three domains of core activity within the University:
(I)Teaching and Learning
(ii)Research and Scholarship; and
(iii)Service and Contribution to University and Society.
To be deemed eligible for promotion to Senior Lecturer, applicants are required to achieve: A total score equal to or greater than 150;
A score equal to or greater than 50 in both domains (i) and (ii), and
A score equal to or greater than 25 in domain (iii).
Applicants are scored out of 100 in domains (i) and (ii) and out of 50 in domain (iii) above.
The application process is a two-stage process:
(a)Applications are first considered by the Faculty Review Panel (“FRP”) from the applicant’s faculty. Following a review of the applicants, the FRP assigns scores to each applicant and on that basis determines who is eligible for promotion. The Chair of each FRP submits the names and scores of the eligible applicants from each faculty to the Academic Promotions Committee (“APC”) in writing together with a ranked list of all of the applicants from within the faculty;
(b)The APC reviews the FRP process to ensure its fairness and then proceeds to consider and evaluate in detail the applications of the applicants deemed eligible for promotion by the FRPs. The APC produces a University-wide ranking of the eligible applicants and recommends the highest ranked applicants in writing to the President.
In its assessment, the APC considers all evidence provided by the applicants and is informed by, but not bound by, the scores and comments of the FRP. It takes account of disciplinary difference, while also seeking to maintain broad equivalence of standards across the University. It applies its academic judgement and expertise to evaluate quantitatively the achievements of each applicant institutionally, nationally and internationally. The promotion process is evidence-based and the onus is on the applicants to provide and present effectively the evidence that supports their claim for promotion.
Under the Promotions Policy, appeals may be made to the President, in writing, by applicants based on alleged defects in the application of the procedures for promotion. The appeals procedure is contained within the Promotion Policy.
In considering an application for an appeal, the President reviews the same materials and documentation as were submitted by the applicant in his/her original application. Applicants who have not been recommended for promotion by the APC are afforded the opportunity to receive written and oral feedback in relation to their applications. Appeals must be lodged with the President in writing within 10 working days of being notified of the outcome of the application.
The Promotions Policy provides that the President, in the first instance, shall require the relevant Dean and the Director of Human Resources to discuss the matter with the applicant. If the matter cannot be resolved at that level, the President will appoint an external senior academic to investigate the appeal and make a determination as to whether any irregularity (i.e. which could reasonably have influenced the outcome under appeal) took place. If the appeal determines that there was a material irregularity, the President shall refer the application to the APC for reconsideration.
In this case the FRP met on 8 June 2017 and assessed all applications (of which there were 14 from within that Faculty), including the Complainant’s application. As stated above, the Complainant was ranked seventh out of 14 applications in her Faculty. The Complainant was scored across the three core academic activities as follows:
·Teaching (72.7 out of 100). The minimum threshold for promotion in Teaching is 50 out of 100;
· Research & Scholarship (66.2 out of 100). The minimum threshold for promotion in Research & Scholarship is 50 out of 100; and
· Service & Contribution 32.5. The minimum threshold for promotion in Service & Contribution is 25 out of 50.
The Complainant was deemed eligible for promotion and her name, scores and ranking were passed onto the APC. Although she reached the threshold for promotion, given the limited number of Senior Lecturer roles available to be filled, the Complainant was not scored highly enough to be recommended for promotion.
The Complainant met with the Executive Dean for an oral feedback session on 3 October 2017. At this meeting, He explained that each competition is a new process and therefore, the Complainant’s scores from previous competitions cannot be taken into account. He explained that the Promotions Policy clearly sets out that a single score is awarded for all activities under each of the core academic activities and therefore while applicants can have clear strengths in one or two of these domains, the University requires applicants to meet a minimum threshold across all three areas. Professor Doyle explained that the Complainant’s scores in both Teaching and Service reflected her strengths and contributions in these areas. In further correspondence following the feedback session, He provided more specific feedback on the range of activity from applicants that scored more highly than the Complainant in the competition.
In her appeal dated 5 October 2017 the Complainant stated: “I wish to appeal the outcome Promotion to Senior Lecturer Procedure on the basis of an irregularity in the procedures in relation to the scoring of my application under Research and Service, which influenced the outcome of the decision to deny me promotion.”
On 25 October 2017 the Respondent asked the Complainant to set out in full the grounds of her appeal, which the Complainant did on 3 November 2017. The Complainant alleged that irregularities and anomalies in the manner in which the promotion procedures were applied to her application for the role of Senior Lecturer was discriminatory. In particular, the Complainant alleged that the Respondent failed to:
(c)apply the review of Google Scholar citations and H-index scores uniformly to all applicants;
(d)provide clarity in the manner in which the assessment of Google Scholar citations and H-Index scores are ranked;
(e)account for all quantitative journals and articles published by the Complainant;
(f)acknowledge and take into account the effect of her disability on her research output;
(g)take into account the time gap naturally involved in publishing peer-reviewed publications;
(h)acknowledge or take into account the time constraints posed on the Complainant due to her onerous teaching obligations;
(I)afford adequate weight to the Complainant’s overall score in the domain of Teaching;
(j)provide transparency and clarity in the scoring of applications;
(k)acknowledge and take into account time constraints posed by requirements under the domain of Service;
(l)acknowledge and appropriately score the duties of a Programme Chair; and
(m)consistently measure service contributions and assess their social impact.
On 12 January 2018 he responded to the grounds set out in the Complainant’s letter of appeal. He reiterated that appeals in the promotions process can only be made on procedural grounds as outlined in the Promotions Policy. He explained to the Complainant that the promotions process is a University-wide competitive process in which the Complainant was deemed to have met the threshold for promotion but was not scored highly enough to be among the six vacant positions across the University available at the time. He further explained that the criteria upon which applicants are marked are published on the University’s website and have been available on the website from the moment the competition opened. Furthermore, the call for applications and the information sessions for staff drew attention to these criteria and explained the process in detail. Staff were also afforded the opportunity to ask questions regarding the process in these sessions.
He explained that the Promotions Policy clearly sets out that a single score is awarded for all activities under each of the core academic activities. For example, with regard to the Research & Scholarship activity, scores are not awarded for individual sub-sections of research activity, rather the FRP awards a single score for quantity and quality of publications, number of PhD supervisees and graduates, three sample pieces of writing, research impact, citations, Research funding, research collaborations, innovations, knowledge transfer, recognition, mentorship and leadership. The Promotions Policy sets out that applicants are scored separately for each core academic activity, i.e. Teaching; Research & Scholarship; and Service & Contribution. Furthermore, while applicants can have clear strengths in one or two of these domains, the University requires applicants to meet a minimum threshold across all three areas. The Complainant was informed that as a result, it is possible that an applicant could have a higher performance score in one sub-section of the core activity and still score lower overall when all sub-sections of the core activity are collectively taken into account.
In her submission to the WRC, the Complainant states as follows:
“1) There are a number of irregularities and anomalies in the procedures due to gender-based and disability-based discriminations in the scoring of my Senior Lecturer application, which led to a failure to achieve promotion. 2) Significantly better quantitative measures of performance (on average across the three categories of Teaching, Research and Service I have delivered twice the amount) compared with two successfully promoted male candidates from my School in the 2015 and 2017 competitions indicates a pattern over time of gender-based/disability-based discrimination, i.e. compared with promoted male peers. 3) The panel did not take into account my disabilities (“spinal injury/surgery/disability over a 30 month period from January 2013”) which led to the period of having no publications of one year 2016 and at most the sum of the year 2016 and the start of 2017, i.e. a gap of a year and three months. The research section of my application was scored on the basis of a lack of peer reviewed publications from 2014 to 2017 and this was provided as a reason not to promote me.”
By way of preliminary submission, the Complainant’s claim is limited to her application in 2017. Any claim for discrimination in respect of the 2015 application process is well outside both the six-month and 12-month time limits provided for in the Acts and is therefore statute-barred. This is clear from the Determination of the Labour Court in Dr Eleanor O’Higgins v UCD. Consequently, only the 2017 application process should be considered in the context of this claim.
By way of background, as outlined above, there are two stages to the decision making; ranking by an applicant’s close peers in their own Faculty, followed by a university level committee, which makes a decision on a cross University basis to distribute available posts, but without overturning the original ranking at Faculty level unless there was a procedural error (which has never happened). Therefore, the faculty ranking is the most crucial element and there is no evidence that the Complainant was treated unfairly.
In 2015 there were five schools in the Faculty of Humanities and Social Sciences. The Faculty Review Panel for promotions included the Dean, all five Heads of School, one additional nominee from each school, a Dean from another Faculty and an external Professor. In 2017 – after the incorporation into the University of the three institutions there were seven schools in the Faculty so the number of FRP members was increased to 17. Therefore 17 different people reviewed the applications and then met for about three hours to agree a scoring and ranking.
The Senior Lecturer promotion process is a University-wide, merit-based, competitive process designed to ensure the greatest level of fair procedures possible, in line with the University’s Equal Opportunities’ Policy. The promotions process is a competitive one. Generally, there are a limited number of vacancies. The number of vacancies is determined by budgetary constraints and also by the ratio set by the Higher Education Authority. Particularly, as public funding for universities was reduced in the years’ following the 2008 economic downturn, there are typically many more applicants that meet the promotions threshold than the number of vacancies available.
Points 1) and 2) of the Complainant’s claim relate to the alleged discrimination against her by the Respondent during the course of the promotions process.
Section 6(1)(a) of the Acts prohibits discrimination on the basis: “(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”)”
The Respondent denies that the Complainant was discriminated against on the ground of gender. The onus is on the Complainant to establish a prima facie case of treatment contrary to the Acts which states at section 85A “where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her, it is for the Respondent to prove the contrary”.
In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out. It held, inter alia as follows: “The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary facts from 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 provide that there was no infringement of the principle of equal treatment.”
Valpeters v Melbury Developments Limited, isa case concerning discrimination on the ground of race. In its Determination the Labour Court stated: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
The Complainant has not specifically identified a comparator in her complaint form, as is required of her by the Acts. Without prejudice to the foregoing, the Respondent infers that the Complainant is referring to one of the three successful male applicants who is a member of her Faculty. For ease of reference this person is referred to as the “Male Applicant”.
In considering whether an applicant for promotion was favoured over another applicant on the ground of gender or on any of the other proscribed grounds, it is not the function of the WRC or the Labour Court to do a comparative analysis of the relative merits of each application. In Galway City Partnership v Josephine O’Halloran the Labour Court held as follows: “The Complainant relies on what she regards as her higher qualifications and better experience to raise an inference of discrimination. Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise... However, the qualifications or criteria which is 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 chose criteria that an inference of discrimination can arise….
The Court is further satisfied that the criteria agreed upon by the interview board was applied consistently to both candidates”.
This approach was endorsed by the Labour Court in O’Higgins referred to above. In O’Higgins the Labour Court summarised the approach to be followed based on the authorities that it had reviewed: “From these decisions and authorities the following principles can be extracted: -
(a) It is for the Complainant to prove the primary facts upon which she relied in seeking to raise an inference of discrimination
(b)If the Complainant discharges that burden it remains for the Court to decide if those facts are sufficient to raise the inference contended for
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
(c) 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. 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
(d) 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
(e) 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
(f) 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”.
It is submitted that the Complainant has failed to discharge the onus on her to make out a prima facie case of gender discrimination. The gender of the applicants was not in any way relevant to the decision as to whether or not they should be recommended for promotion. The applicants were assessed equally by reference to three objective criteria. The scoring procedure required the Faculty Review Panel to score each applicant out of 100 for all teaching and learning activity; 100 for Research and out of 50 for Service. In each category there are aspects of academic work than can be quantified such as numbers of modules and students taught or supervised, numbers of publications and their international ranking. However, the nature of academic work means that some aspects are more difficult to quantify such as innovation in teaching and assessment; contribution to university life etc. Academics also have varied roles with some colleagues having greater strengths in publications and others in fund-raising and supervision of PhDs. Therefore, the University does not grade each sub-dimension of research separately. Colleagues can within the category have different mixes of strengths and weaknesses. No other approach could capture the mixed professional role of a modern academic. The FRP meets for a long period precisely to make a judgement call on issues highlighted by the applicant in their application such as periods of maternity leave, illness, disability etc.
Without prejudice to the foregoing, if necessary the Respondent will tender evidence to explain its decision not to promote the Complainant. There is no evidence that the Male Applicant was promoted in favour of the Complainant. The Male Applicant ranked 1 out of the 14 applicants for promotion from within the Complainant’s Faculty. The FRP and APC fully stand over the Male Applicant’s ranking and that his application was better overall than that of the Complainant.
Furthermore, statistical information is relevant. The University received a total of 50 applications for promotion to Senior Lecturer across all five faculties (24 males and 26 females). 43 of these applicants were shortlisted (19 males and 24 females). Six applicants were successful (three males and three females).
14 of the 50 applicants were from the Complainant’s faculty. Of these 14, there were seven women and seven men. Four men and two women ranked higher than the Complaint. Three men and four women ranked lower than her. Of the 12 applicants from the Complainant’s Faculty who were deemed eligible for promotion, two were promoted - one woman and one man.
The FRP was evenly gender balanced. The membership of the FRP was comprised of eight women and nine men. Furthermore, of the 15 members of the APC, five were men and 10 were women.
In a statistical context, whereas higher education like many employment sectors has an overall gender imbalance at senior grades this is not the case in the Complainant’s Faculty. In 2018, the male/female breakdown at the relevant grades is as follows:
· Lecturer (now titled ‘Assistant Professor’): 45% female;
· Senior Lecturer (now titled ‘Associate Professor’): 52% female; and
· Professor: 50% female.
In the Complainant’s own School of Law and Governance, across all academic promotion competitions:
· two men and four women were promoted in 2015-2017 inclusive; and
· four men and six women were promoted in 2013-2017 inclusive.
It is clear from the foregoing that the Complainant has not been discriminated against on the ground of gender. In particular, the Respondent submits that the Complainant has adduced absolutely no evidence of any relationship or link between her gender and the decision not to promote her to Senior Lecturer. Furthermore, there is no pattern of gender-based discrimination, as contended for by the Complainant.
Point 3) of the Complainant’s claim relates to the alleged discrimination against her by the Respondent during the course of the promotions process on the ground of disability. The Respondent does not accept that the Complainant suffers from a disability within the meaning of same in the Acts and the Complainant is put on full proof thereof. The onus is on the Complainant to establish a prima facie case of treatment contrary to the Acts on the grounds of disability under Section 85A(1) of the Acts which provides as follows:- “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 him or her, it is for the Respondent to prove the contrary”.
It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. The Respondent relies on the Mitchelland Valpeters decisions referred to above.
Section 16(3)(b) of the Acts state as follows: “The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –
(i) to have access to employment;
(ii) to participate or advance in employment; or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.”
Section 16(3)(c) of the Acts goes on to provide: “In determining whether the measures would impose such a burden account should be taken, in particular of –
(iv) the financial and other costs entailed;
(v) the scale and financial resources of the employer's business; and
(vi) the possibility of obtaining public funding or other assistance.”
In so far as it was obliged to do so by law, the Respondent did not fail to accommodate the Complainant in respect of the 2017 promotion process. When an applicant’s record is being reviewed by the FRP, consideration is given to any special circumstances that may have resulted in a lack of opportunity for an applicant to perform to their full potential in any area of core academic activity. In his letter to the Complainant dated 12 January 2018, the Chair explained that the FRP did take into account the leave and illness information included by the Complainant in her application, which was the only information available to the FRP on this issue.
The Complainant alleges that she was suffering from a disability for “over a 30-month period”, however the Complainant was only certified as unfit for work for a 12-week period. In the Complainant’s Occupational Health Report of 9 February 2015, she was certified as being “fully fit to continue to do her full duties, including teaching, administration and research”.
More specifically, the Complainant was certified as absent from work due to back and neck surgery from 11 – 18 February 2014. The Complainant was admitted to hospital on 13 February 2014 and was certified as unfit to work for 6 weeks following the surgery, i.e. until 27 March 2014. On 28 March 2014 the Complainant produced a certificate from her GP certifying her as unfit to return to work until 11 April 2014. The Complainant was thus absent from work for two months. On 3 February 2015, the Complainant underwent an Occupational Health Assessment. The Occupational Health Assessment Report, dated 9 February 2015, states that the Complainant has a medical complaint affecting her neck and that her symptoms began to increase over the last four months. The Report states that the Complainant required an ergonomic assessment to advise her how best to use her desk. The Report further states that the Complainant was fully fit to continue to carry out her full duties including teaching, administration and research. The Complainant was referred for an ergonomic workstation assessment on 1 July 2015. The Health Risk Manager had a meeting with the Complainant and made adjustments to her workstation. The FRP discussed the fact that the Complainant had 12 weeks of certified leave, after which she returned to work, but reported that she was unable to work effectively for 30 months. Notwithstanding that the Complainant was not on certified leave it was taken into account in awarding a much higher research score than would have been otherwise awarded (based on the Chair’s experience as chair of the FRP for five years and a member for the previous five years). The Complainant had no publications for 2014, 2015, 2016 or the start of 2017 and had none listed as forthcoming for 2017 or 2018 at that point, has never published a book (as each of the top 5 applicants who were promoted have); had listed nine international conference papers delivered internationally in the period 2014-17 and a further three nationally – none of which had been published in peer-reviewed outlets. Notwithstanding this profile, the Complainant received a score of 66.2% in Research, which is above the 50% threshold.
The Complainant’s claim that her research output was affected by her alleged disability suggests that prior to her absence she had a strong research output track record. This is not the case. In her application for promotion in 2013 she scored 55% for Research – only 5% above the threshold for being considered for promotion.
Furthermore, there was a serious error in the Complainant’s application in one of the areas she included as a highlight, which meant that her Google citation count was reported in her application as significantly larger than it was in reality due to the inclusion of articles she did not author. The Academic Promotions Committee would normally have disqualified such an application but in the circumstances took it as a genuine error and allowed the Complainant to submit a revised application after the deadline.
In the circumstances it is submitted that the Complainant has failed to discharge the initial burden of proof as required by section 85A of the Acts.
In summary and in conclusion, it is clear from the foregoing that:
the Complainant was not discriminated against on the ground of her gender;
the Complainant was not discriminated against on the ground of her alleged disability;
the Respondent did not fail to provide reasonable accommodation to the Complainant and her claim in this regard is misconceived;
the Respondent did not fail to promote the Complainant to Senior Lecturer as a result of alleged discrimination on the grounds of gender and/or disability. The Complainant applied for promotion and was considered for promotion both by her Faculty Promotions Committee and the Academic Promotions Committee. Only six of 50 applicants were successful. The Complainant was one of 44 unsuccessful applicants.
There was no breach of the University’s procedures including the Promotions Policy in relation to the Complainant’s application for promotion.
The Respondent refutes the claim that it has engaged in a pattern of gender-based/disability-based discrimination. The statistical evidence provided by the Respondent does not support this claim.
The Respondent acknowledges that the outcome of the promotions process in 2017 is disappointing for her following her previously unsuccessful applications in 2013 and 2015. However, this does not mean that the Respondent has unlawfully discriminated against her.
Findings and Conclusions:
I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination.
It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.
It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent.
I find that if the Complainantdoes not discharge the initial probative burden required her case cannot succeed.
I note that the Complainant has made two claims of discrimination: Gender and Disability.
I find that by reason of the time limits of 6 month /12 months by expansion on reasonable grounds the application pertaining to 2017 only may be considered.
I find that the application process for promotion is determined by the university’s Policy, Procedures Criteria and Guidelines for Promotion.
I note that this policy is published on the university’s website.
I note that applicants are assessed and scored across three areas/domains of core activity of the university: - (1) Teaching and Learning; (2) Research and scholarship; (3) Service and Contribution to the University and Society. The scoring is weighted at 100 for (1) and (2) each and 50 for (3).
Applicants are required to score a total of 150 or greater with a minimum of 50 for (1) and (2) each and 25 for (3).
I note that there are two stages to decision making, firstly ranking by an applicant’s own faculty and then secondly a university level committee who makes a decision on a cross university basis to distribute the available posts.
I note that the second tier doesn’t alter the original faculty ranking, which demonstrates that the original ranking is the most important element because this ranking is carried out by the applicants’ close peers in their own faculty.
I note that the make-up of the Academic Promotions Committee (APC) was 10 women and 5 men.
I note that each Faculty has a Faculty Promotions Committee. The Complainant’s faculty comprised of 8 women and 9 men.
I note that there were 14 applicants from this faculty.
I note that the Complainant scored 72.7 out of 100 for Teaching, 66.2 out of 100 for Research & Scholarship and 32.5 out of 50 for Service & Contribution.
I note that the Complainant was ranked 7th out of 14.
I note that 12 out of 14 applicants were deemed eligible for promotion.
I note that the APC assessed the nominated candidates and 6 were better ranked than the Complainant, 4 men and 2 women.
I find that of those 12 candidates from her faculty 2 were promoted 1 man and 1 woman.
I find that the Complainant did not name a comparator as is a requirement of this legislation.
I note at the hearing that the Respondent inferred that the comparator was one of the successful male applicants
I note that on a university wider basis eventually 3 women and 3 men were appointed.
I find that men ranked higher than the Complainant were not appointed due to gender quotas in operation.
I note that the Labour Court in case EDA077 stated “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 for an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise”.
I have considered the evidence under this heading of gender and I have concluded that the criteria that were applied were not discriminatory and were not applied inconsistently.
I find that a total of 17 people assessed the applicants and then ranked them.
I am satisfied that the Respondent has applied its policy in a fair manner.
I find that the Complainant has not established a prima facie case of discrimination on grounds of gender.
I note that the Complainant has asserted that she has suffered from a disability which resulted from an injury that occurred in 2014. This caused her to be absent from work for two months and she has alleged that she has suffered from a disability for over a 30-month period.
I note that the Respondent has rejected this allegation and has asserted that she was certified unfit for work for a 12-week period only .
I note that the Respondent’s Occupational Health Adviser on 9th February 2015 certified her “fully fit to continue to do her full duties, including teaching, administration and research”.
I note that it was alleged that she scored low on Publishing. It was pointed out that she had no publications in 2014, 2015, 2016 and part of 2017.
I note that despite this she was scored 66.2 for this area which was above the 50 % threshold.
I note that it was pointed out that in her application process in 2013 she was scored 55 for this area when she couldn’t rely upon her alleged disability.
This would demonstrate that the Respondent made allowances for the fact that she had not had any publications.
I note that it was stated by the Respondent that she had not prioritised her work and she had over concentrated on Service and Contribution which was weighted at 50 as against 100 for the other two areas.
I have found no evidence that she was discriminated against because of her alleged disability. The facts of the matter are that the Respondent made allowances for her lack of publications even though she alleged that her disability prevented her from publishing.
I found no concrete evidence to support her assertion that her alleged disability prevented her from publishing.
Even if that assertion was accepted the Respondent has shown that it had not treated her unfairly because of it, by scoring her higher than the 2013 scoring and which was well above the minimum threshold of 50.
I have considered the evidence presented by both parties and I have concluded that the Complainant has not established a prima facie case of discrimination on grounds of disability.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Based on the above stated findings I have decided that the Complainant has not established a prima facie case of discrimination on grounds of gender and or disability.
I have decided that the complaint was not well founded and that it fails.
Dated: April 25th 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Discrimination on grounds of gender and disability.