Complainant

Respondent

Parties

Mary  Dempsey

University of Galway

Representatives

Marie O'Connor SIPTU

Kevin Feighery Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056888-001

29/05/2023

The Complainant is employed as a Senior Lecturer and applied for the position of “Professor in” and was unsuccessful in her application for the post and claimed that the decision to not promote her was discriminatory due to her age and gender.

The Complainant, alleged discrimination by her employer, on grounds of gender and/or age under the Employment Equality Acts, 1998 to 2021. The discrimination claim relates to her unsuccessful application for promotion to a new academic rank in University of Galway, “Professor in” (e.g., Professor in Mechanical Engineering).

The Complainant started as a Temporary Teaching Appointee on 1st February 1994 with annual contracts until 2003. She then received a fixed-term Lecturer contract in 2003.

 In 2005, the University unilaterally altered her contract, removing her Lecturer title and research duties. Following an Equality Tribunal decision in 2015, the University reinstated her Lecturer contract. In 2017, she was promoted to Senior Lecturer/Associate Professor. In a  previous Tribunal Decision (2014): the Equality Tribunal found the University discriminated against her on gender and disability grounds. The University was ordered to restore her Lecturer title and provide equitable terms. Compensation of €81,000 was awarded for discriminatory treatment.

In February 2022, she applied for promotion to “Professor in” but was unsuccessful. She received notification of the unsuccessful application in June 2022. In September 2022, she attended a feedback meeting with the Academic Promotions Committee (APC). She appealed in October 2022, citing failure to follow policy and referencing prior discrimination. The Appeals Committee met in November 2022; minutes were later obtained via Freedom of Information. In December 2022, her appeal was rejected. She raised concerns about misrepresentation of her appeal grounds, submitting detailed clarifications. The HR Director confirmed the appeal was closed by January 2023, referring her to external dispute resolution avenues.

Promotion Application Process and Alleged Discrimination:. Feedback Meeting Tone: The APC Chair made gendered remarks, advising the Complainant to “be strategic” in promotion efforts, suggesting women tend to contribute broadly without benefiting themselves. The Complainant was advised to focus more on personal advancement.

 Leadership and Teaching Contributions: The Complainant actively participates in mentoring and holds a leadership role as Vice Dean for Equality, Diversity, and Inclusion. She played a key role in securing Athena Swan accreditations for the College of Engineering and Science, including a Silver award for the School of Engineering.  Despite her leadership role, she continued teaching and supervising students for nearly three decades. She received prestigious teaching awards, including University-level and national recognition. The APC Chair appeared to penalise her for leadership duties, implying these negatively affected her teaching.

Key Issues Raised: · Discriminatory Treatment: The Complainant alleges ongoing gender discrimination, especially highlighted by the APC Chair’s feedback. The promotion scheme ‘lookback’ over the Complainant’s career, including the discriminatory period to assess her research output, is a continuum of discriminatory treatment. Successful applicants were younger than the Complainant. The University’s prior history of discrimination and the Tribunal’s ruling bolster her claim.

Procedural Failures: The Complainant asserts that the University failed to follow its own promotion policies. Her grounds for appeal were misrepresented by the Appeals Committee, altering the context of her complaint.

Impact of Discrimination: The adverse feedback and appeal rejection have stalled her career progression despite her qualifications, experience, and leadership contributions. The case highlights systemic issues within the University's promotion processes and treatment of older female academics. We contend that there is a case of ongoing gender and age discrimination faced by the Complainant at a university in relation to promotion and career progression. Despite her previous Equality case which upheld gender discrimination (including teaching during maternity leave), systemic gender bias persists, especially in promotion processes. Female representation in senior professorial roles in science and engineering is very low (15% at Personal Professor and 3% at Established Professor levels).

The complainant was also discriminated against on age grounds due to legacy support programs benefiting younger female academics but excluding her, worsening the impact on her career. The complainant’s promotion application under Section D included detailed contextual information about how discriminatory contracts (with restrictions on research activities, teaching loads, lack of funding, inability to supervise postgraduate students) severely impacted her career trajectory. However, this context was ignored by the Academic Promotions Committee (APC), allegedly based on legal advice and unilateral decisions. The same narrative in Section D was also provided by the Complainant in the Funding section (Section 6a, p36) and in the Publication Profile section (Section 7c, p39-41) of her 2022 application. . These sections were evaluated/scored under criteria 2vii Substantial Research (CORE) and criteria 2vi Pedagogical Funding but the constraints highlighted were ignored by the APC in their scoring of those sections. The university failed to consider the period of discrimination when assessing her promotion, treating her entire career as equally comparable to those who did not face such barriers. This continued exclusion perpetuates both direct and indirect gender discrimination.

Direct gender bias was evident in feedback from a committee chair advising her “as a woman” to be more strategic, reflecting stereotypical assumptions. The Complainant asserts that the university’s promotion processes and policies, despite stated commitments to equality, diversity, and inclusion, have perpetuated systemic and unlawful discrimination on gender and age grounds. We contend that the promotion process in this case was tainted by unlawful discrimination, particularly on grounds of gender and age, similar to previous cases. In Micheline Sheehy Skeffington v National University of Ireland: The Equality Tribunal found gender discrimination in promotion to Senior Lecturer. The complainant was unfairly assessed despite strong credentials, and the panel was mostly male and silent on gender issues. The tribunal ordered promotion and compensation for the complainant. In Yvonne O’Rourke v Minister for Defence: Gender discrimination occurred due to unfair treatment of maternity leave in performance appraisals, affecting promotion opportunities. The tribunal ordered compensation and policy reviews to ensure protections for pregnant employees. In McGrath v Focus Ireland: Age-based differential treatment is only lawful if objectively justified. The current case claims no such justification was given for preferential treatment of younger female academics, harming older female colleagues. In Van Colsen v Land Nordrhein-Westfalen: Compensation for discrimination must be adequate to be effective and deterrent.

Conclusion: The complainant claims she was discriminated against by the respondent on grounds of gender and/or age in her application for promotion to professor in, She seeks appropriate compensation and a fair review of her application excluding the periods affected by discrimination

On 22 February 2022, the Complainant applied for promotion to “Professor in” (Teaching and Learning Track) under Round 5 of the University’s Academic Promotions Policy. Her application was assessed by the Academic Promotions Committee at meetings held on 25 May and 15 June 2022. The guidelines in relation to this application were published in advance of the process and the Respondent held information sessions for potential applicants. These guidelines have been exhibited within this submission. 

This 16-person, gender balanced Committee, comprising twelve senior internal academic members, two external senior academics, the Vice-President for Research and Innovation and chaired by the Deputy President and Registrar, undertook a comprehensive scoring process across nine criteria. While the Complainant met several criteria (score 3 – criterion met), she was deemed not to have met the criteria (score 1 – not meeting the criterion”) in three areas:

•       National/international standing in teaching and learning

•       Pedagogic funding

•       Substantial research (core)

As a result, her application did not establish a prima facie case for promotion. Promotion requires that all criteria be met, or that a single non-core deficit be offset by significantly exceeding standards in a majority of other areas — which was not demonstrated.

The outcome was communicated on 20 June 2022, with written feedback issued on 28 June. The Complainant availed of an oral feedback meeting on 30 September 2022. She submitted an appeal on 27 October 2022.

The Academic Promotions Appeals Committee (APAC) met on 30 November 2022 and concluded that the original process had been fair and consistent with policy. The Complainant was notified on 6 December 2022. A clarification letter followed on 15 December correcting a reference to “track” instead of “contract type.”

Subsequent correspondence from the Complainant on 19 December was reviewed by the APAC on 25 January 2023. It confirmed the matter was closed internally and notified the Complainant via a letter from HR dated 2 February 2023, advising of her right to refer the matter to the WRC.

Respondent’s Position – Equality Claim

(i) No Prima Facie Case of Discrimination

In accordance with Section 85A of the Employment Equality Acts 1998–2015, a Complainant must first establish facts from which discrimination may be presumed. The Complainant alleges discrimination on gender and age grounds but has:

•       Provided no comparator to demonstrate less favourable treatment; • Failed to link any adverse treatment to either ground; and

•       Presented no credible evidence beyond assertion.

Case law (e.g., Melbury Developments Ltd v Valpeters and Southern Health Board v Mitchell) confirms that speculation does not meet the legal threshold to shift the burden of proof. The Complainant has not satisfied this requirement.

Promotions are determined through a structured, evidence-based scoring system. Gender or age played no part in the outcome.

(ii) Part D

The Complainant has centred her equality complaints on the failure of the Respondent to properly consider the information they included in Part D of the application for promotion. Any information that is included in Part D is not marked or assessed in the context of any application for promotion, nor is it a required section of the form. It is included to provide context only, if the applicant so desires. The information submitted was considered by the panel in accordance with the promotions policy.

Discrimination for the purposes of this Act

(1)

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2)

As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a)

that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b)

that they are of different marital status (in this Act referred to as “the marital status ground”),

(c)

that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d)

that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e)

that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f)

that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g)

that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h)

that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i)

that one is a member of the traveller community and the other is not (in this Act referred to as “the traveller community ground”).

(3)

Where—

(a)

a person has attained the age of 65 years, or

(b)

a person has not attained the age of 18 years,

then, subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

(4)

The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.

s. 8 Discrimination by employers etc.

Discrimination in Specific Areas

8.Discrimination by employers etc.

(1)

In relation to—

(a)

access to employment,

(b)

conditions of employment,

(c)

training or experience for or in relation to employment,

(d)

promotion or re-grading, or

(e)

classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2)

For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3)

In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4)

A person who is an employer shall not, in relation to employees or employment—

(a)

have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b)

otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)

in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or

(b)

by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.

(6)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a)

the same terms of employment (other than remuneration and pension rights),

(b)

the same working conditions, and

(c)

the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a)

the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

The Burden of Proof

Section 6 (1) of the Act clearly sets out that for discrimination under this Act to occur it must be on one of the nine grounds set out in subsection (2).

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

The Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Findings

Claims regarding discrimination concerning promotions are always difficult to consider as there is huge precedent for the WRC not to interfere in a promotion decision of an Employer, unless there is blatant discrimination. It is essential the Complainant can establish a prima facie case to enable their case to be evaluated further. The Complainants complaint form cited discrimination on two levels, age and gender. In this case the Complainant has not sighted any male Comparators but does cite generic (younger) female comparators as having being treated differently to her. She also did not name any comparators in relation to her age complaint. In summary, the Complainants case basically was that she should have been scored or assessed differently to other candidates due to her past discrimination case in which she was successful. The Complainant also made reference to certain alleged discriminatory comments being made as part of the process but the Complainant did not seek to call the persons alleged to have made these comments as witnesses to assist her claim. 

 The Respondent case was that there is a set and defined criteria to assess all candidates, that there was a section in the application form for all candidates to include anything specific to their application (Section D) for consideration by the Interview Board and that the Complainants post interview and promotion application process claim that she should have been assessed differently to all other candidates was not fair to other candidates or reasonable to amend the scoring system, post the application and section process. The Complainant sought an individual  “multiplier” to be considered for her period of discrimination.

In evidence the Respondent Deputy President and Registrar, Professor Pol O Dochartaigh stated the format for promotions took two years to finalise and had the full involvement and support of both SIPTU and IFUT.  He advised all members of selection panels must undergo equality training. He advised the system is designed to cater for protected leave i.e. maternity leave. With regard to Section D, he advised the Hearing this was included at the request of the Trade Unions and that it was agreed specifically does not form part of the scoring but enables a candidate to submit any other relevant information for consideration by the Interview Board they deem pertinent. He confirmed Section D is not a criteria for scoring but is read by all of the selection panel and a candidate was free to include any information they deem pertinent to their case for promotion..

The Complainant is employed since 2017 as a Senior Lecturer for 60% of her time and 40% for Vice Dean for Equality, Diversity and Inclusion. She was originally employed on a unique non academic individual contract due to her industrial experience and this was later regulated following a previous discrimination decision in her favour.

The Complainant submitted that 14 candidates were promoted and 8 of there were female and 6 Men. The average age for females was 48 to 50 and the average age for men was 45 to 47.  Other information regarding recent historical promotion on age and gender were submitted but this information was not pertinent to the instant complaint.

The Complainant has previously been involved in a discrimination case which she was successful in with the Respondent and received significant and appropriate compensation in that case and her role was amended on the basis of that decision. The Complainants main case is that the discrimination which occurred previously should have been considered in her application and some form of pro rata analysis/scoring should have taken place to equal the playing field regarding the service she lost out in the past as a Lecturer due to her discrimination. I have considered this and conclude that if this had taken place then the other candidates could claim they were being discriminated against as the Complainant would be given an unfair advantage or preferential treatment over them based on their total experience. The other candidates should not be disadvantaged because of the Complainants past situation which she was appropriately compensated for and the Complainant is not entitled to individual and preferential treatment, based on generic and unsupported claims of discrimination on age and gender.  To include a scoring criteria for one off issues of any nature would lead to an unbalanced and constantly contentious results and allow all candidates to submit a variety of issues for individual scoring consideration. The background to the Complainants circumstances were submitted by her to the Interview Board and while not forming part of the scoring (like all other candidates individual notes) where available to be considered and taken into account generally by the Interview board.

I also find that at the time of the selection and interview processes, the interview panel had no knowledge of the actual age of the candidate and no evidence was provided by the Complainant to demonstrate it was a consideration for selection or appointment to positions. Based on the above gender outcomes no gender bias could be construed.

I find that the Complainant has failed to establish a prima facie case of discrimination on the age or gender ground. 

I find that the Complainant was not discriminated against and the complaint is not well founded.

Discrimination