FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : UNIVERSITY OF LIMERICK (REPRESENTED BY HOLMES O'MALLEY SEXTON SOLICITORS) - AND - A WORKER (REPRESENTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Brennan Worker Member: Ms Ni Mhurchu |
1. Appeal by the worker against Equality Officer's Recommendation No. EE19/96.
BACKGROUND:
2. The dispute concerns a claim by a worker that the University of Limerick discriminated against her on grounds of sex in relation to access to promotion contrary to the provisions of Section 2(a) and 2(c) of the Employment Equality Act, 1977 in terms of Section 3 of the Act.
The worker is employed as a Lecturer in European Law by the University of Limerick. In January, 1995 the University advertised an additional post of Professor of Law with the Department. Eight applications were received from five males and three females. Two of these candidates, both male were shortlisted for interview.
The worker applied for the position but was not shortlisted. She was informed that she was not being called for interview as there were other candidates whose qualifications and experience more closely matched the immediate requirements of the University.
The worker claims that the requirement of "several years experience at senior academic level" caused her to be discriminated against, both directly and indirectly by the University in applying the shortlisting procedure. The worker lodged her complaint with the Labour Court. The Labour Court referred the complaint to an Equality Officer for investigation and recommendation. Following her investigation the Equality Officer found that the University of Limerick did not discriminate against the worker contrary to Section 2 of the Employment Equality Act, 1977.
On the 24th October, 1996 the worker appealed against the Recommendation on the following grounds:-
1. The Equality Officer erred in law and in fact in recommending that the University of Limerick did not discriminate against the Appellant in the following manner:
i. In failing to have regard to the application of European Law to the scope and operation of the Employment Equality Act, 1977 and the particular facts of the Appellant's claim.
ii. In confining the pool, examined for the purposes of establishing discrimination or otherwise, to the detriment of the Appellant.
iii. In failing to have regard to the ongoing and admitted failure of the Respondent to comply with the provisions of the Employment Equality Act, 1977.
iv. In failing to find direct discrimination against the Appellant.
v. In failing to find indirect discrimination against the Appellant.
vi. In failing to hold that, the requirements put forward by the Respondent as allegedly forming the basis for the decision against the Appellant constituted unlawful or insufficient grounds to justify the discrimination by the Respondent against the Appellant.
vii. In failing to have regard to the discrepancy between the stated reason for discriminating against the Appellant and the reasons put forward at the Equality Officer hearing as justifying the conduct of the Respondent.
viii. In failing to have regard to the Appellant's qualifications and experience.
ix. In failing to have regard to the fact that the Respondent is an emanation of the State for the purpose of Irish and European Law.
x. In failing to have due regard to the Respondent's admitted change of practice on appointments and recruitment.
xi. In failing to have due and proper regard to the unlawfulness and impropriety of the Respondent's appointment/recruitment procedures.
xii. In failing to have due regard to the subjective and incorrect evaluation by the Respondent of the Appellant's experience and qualifications.
xiii. The Equality Officer did not have due regard to Section 3 of the Employment Equality Act, 1977.
2. Without prejudice to the foregoing, the Appellant reserves the right to adduce such further or other grounds as may be appropriate to the appeal by her of the recommendation of the Equality Officer on the hearing of the appeal.
The Court heard the appeal in Limerick on the 16th of April, 1997. Both parties made written submissions to the Court, which were expanded upon orally during the hearing.
DETERMINATION:
The worker in this case, Dr. C., alleges that she suffered discrimination by being denied access to promotion by the University of Limerick, her employer. She argues that the University imposed requirements for the post of Professor of Law which were not shown to be essential requirements, and which were discriminatory because fewer women than men could comply with them. The worker argues that, in any event, her qualifications and experience were equivalent to the requirements imposed. She further criticises the appointments procedures in the University.
The Court has carefully considered the arguments and submissions made on behalf of both parties in this case.
The position about which the worker complains is that of Professor of Law at the University of Limerick. The complaint is that she was not invited to interview for the position.
In advertising the position, the University made it clear that the object of the appointment was to strengthen the teaching and research in the Department which offers two undergraduate law degrees, as well as legal studies for certain other degree courses, including postgraduate courses. It was particularly in relation to the development of the postgraduate studies that the additional professorship was to be created.
The requirements set out for the position were: a higher degree in law, several years experience at a senior academic level, and to have published research in a specialist field of law. The appointment was to be at the most senior level of academic posts within the University.
The University has claimed that the requirements set out above were essential requirements for the post. The worker alleges that there was no evidence to support that claim, and that the University cannot provide objective justification for imposing the requirements.
The relevant sections of the Employment Equality Act 1977 ('the Act') are Sections 3(1), 3(2) and 3(6) in conjunction with 2(c).
Section 3(1) provides:
'A person who is an employer or who obtains under a contract with another person the services of employees of that other person shall not discriminate against an employee or a prospective employee of that other person in relation to access to employment, conditions of employment .... training or experience for or in relation to employment, promotion or regrading in employment or classification of posts in employment'.
Section 3(2) provides:
'An employer shall not, in relation to his employees or to employment by him, have rules or instructions which would discriminate against an employee or class of employee, and shall not otherwise apply or operate a practice which results or would be likely to result in an act which is a contravention of any provision of this Act when taken in conjunction with 2(c)'.
Section 3(6) provides:
'Without prejudice to the generality of subsection (1), a person shall be taken to contravene that subsection if he discriminates against an employee in the way he offers or affords that employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access or if in those circumstances he refuses or deliberately omits to offer or afford that employee access to opportunities for promotion'.
Section 2(c) provides:
That discrimination shall be taken to occur 'where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in Section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher'.
There is no evidence that the recruitment or promotion practices within the University had a sex bias. It was submitted on behalf of the worker that recruitment procedures within the University were changed as a result of the worker's complaint, and that at the time of this appointment the procedures were lacking in transparency. It may be a matter of regret that the University did not have a specific 'equal opportunities' policy at the time of this appointment, and that there was no female member of the selection panel, but the worker has not shown that either of these factors operated to her disadvantage. The Court has noted that there are few women at the senior positions within the university, and would hope that this imbalance might be adjusted in future years. Positive policies in favour of equal opportunities could achieve this result by encouraging women academics to pursue senior positions. However, it has not been shown in this case that there was any direct discrimination in relation to recruitment or promotion of staff at the University or in relation to the selection process for the position of Professor of Law, which is the subject of this dispute.
The worker also criticised the failure of the University to attach adequate importance to her academic qualifications and level of experience. She claimed that these were subjectively evaluated, rather than objectively so. There is no evidence, however, that any evaluation by
the University was sex-biased. The University had set down certain criteria; the only candidates invited for interview were those who matched those criteria on the upper scale of academic experience and achievement. There were both male and female candidates were not called for interview on the basis of not reaching the desired levels. The two candidates who were selected for interview both fulfilled all the requirements for the position.
In fact, the worker has not sought seriously to establish a case of direct discrimination. She really bases her case on an allegation of indirect discrimination, arguing that the requirements set down by the University for the position were not essential, and that it was more difficult for her as a woman to comply with them than it would be for a male academic to comply with them.
In relation to that argument, the first matter for the Court to address is the question of whether or not the requirements were indeed essential requirements. If they were not, then the issue of whether a greater proportion of men than of women could comply with them would follow for determination.
But if the requirements were essential, then the question of indirect discrimination does not arise, because if a requirement is a genuinely essential requirement, any choice based on it could not arise from a sex-based indirect discrimination.
Section 2(c) sets out that the requirement which could lead to discrimination would be one'which is not an essential requirement for such employment'. If, therefore, the worker could show that the requirements imposed for access to the position of Professor of Law were not essential for employment as Professor of Law, then she could go on to seek to show that the requirement negatively affected her as a woman, because the proportion of men who could comply with it was greater.
The worker claims that since academics at a lower level than Professor are carrying out duties such as those included in the job description for the professorship, the requirements could not have been essential.
The Court finds that in relation to a senior academic post, it is not quite as simple a matter as asking whether a person with less qualifications can teach the subject or do the administrative work required. No doubt there are many people in subordinate positions who would be quite capable of doing the work which their superiors are paid to do, and who in fact do the work of their superiors from time to time. But in this case the University was seeking to fill a senior position with a person of a certain status and a high level of teaching, research and administrative experience. It was important to the University that the person would not only be
capable of doing the job, but would be seen to be a person of senior stature, and with considerable experience, so that students of high calibre would be attracted to the courses and that the standing of those courses with employers and with the legal professional institutions would be high. The University was not only interested in who could do the job, but who would be perceived as a suitable holder of one of the two top academic positions in the Law Faculty of a relatively new university. The perception was as important for the employment as the ability to do the specific tasks.
The University certainly considered the requirements to be essential for the employment, and there is no evidence that it was unreasonable in taking this position. In this case, the Court is satisfied that the institution genuinely regarded the requirements as essential, that the requirements were reasonable in the circumstances, and reasonably deemed to be essential, and that the worker has not shown them to be otherwise.
Much has been made in the course of this case of the law arising from the case of Nathan v. Bailey Gibson (Supreme Court 29.02.1996). It was urged that if the worker would show that the requirement impacted more heavily on the members of her sex than on members of the other sex, then a prima facie case of discrimination would have been established, and the burden would shift to the employer to justify it. The Court, however, would simply point out that the question of whether a requirement impacts more heavily on one sex or another only falls to be decided if the requirement is not essential. In the Nathan case, the impugned requirement was found by the Equality Officer not to be an essential requirement for the employment, and that finding was never contradicted. The cases which followed the Labour Court decision in that case were therefore based on the assumption that the requirement was not an essential requirement. In the particular case now before the Court, the Court is satisfied that the requirements laid down by the University were essential for the position of Professor of Law, and the question of the proportion of one sex or the other who could comply with them does not arise.
The Court holds that there was not discrimination and dismisses the appeal.
Signed on behalf of the Labour Court
Finbarr Flood
21st October, 1997______________________
F.B./D.T.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fran Brennan, Court Secretary.