FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY MR TOM MULLEN, B.L., INSTRUCTED BY ARTHUR COX SOLICITORS) - AND - KATHLEEN MOORE-WALSH (REPRESENTED MS MARY HONAN, B.L., INSTRUCTED BY CULLEN & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2003-022
BACKGROUND:
2. The Labour Court investigated the above matter on the 28th November, 2003. The Court's determination is as follows:
DETERMINATION:
Background:
Ms Kathleen Moore Walsh (the complainant) is an American citizen and is employed as an Assistant Lecturer in law at the Waterford Institute of Technology (the respondent). In December 2001 the respondent held a competition to fill a vacancy for the post of Lecturer in Law. The complainant applied for the vacant post but was unsuccessful. She claims that she was not appointed to the post because of her nationality. The Teachers Union of Ireland, acting on behalf of the complainant, presented a complaint to the Director of Equality Investigations (the Equality Tribunal) in May 2002. The complaint was investigated by an Equality Officer who issued his report on the 30th May 2003. The Equality Officer found against the complainant, holding that she had failed to establish a prima facie case of discrimination. The complainant appealed to this Court against that decision.
The Evidence:
The submissions made by the parties, which were supported by oral evidence, can be summarised as follows;
The Complainant
The complainant alleges that the selection process used by the respondent was unfair and biased in the following respects.
Prior to the commencement of the interviews the complainant was informed by a colleague that the vacant post had already been promised to another person who was subsequently appointed to the post. She contends that this promise had been made by the Head of the School of Humanity who was subsequently a member of the interview board. The complainant raised this matter with the Human Resources Manager of the respondent but no action was taken.
The complainant further contends that the conduct of her interview was unprofessional and demeaning. In particular, she claims that she was not adequately questioned about her educational background, her degrees or her publications. According to the complainant her work experience in the United States was not addressed at interview. She also said that disparaging remarks were made in relation to a book she had published on the Law of Tort.
It was alleged that the interview was conducted in a flippant manner and facetious references were made concerning the complainant's nationality. It was further alleged that at a point in the interview when the complainant was seeking to respond to points put to her, a porter entered with a tea tray and interrupted the interview. The interview board members then proceeded to have tea and the interview finished quickly. The claimant contended that she did not have an opportunity to respond to questions put to her and that she was humiliated and embarrassed by the behaviour of the interview panel.
The complainant also contends that the marks which she was awarded did not adequately reflect her qualifications and experience for the post. The complainant holds a BA degree in Government and Economics from the Southern Illinois University and a Degree of Juris Doctorate from Saint Louis University Missouri. She has thirteen years legal experience in the USA and continues to work as a consultant attorney. She commenced employment with Waterford Institute of Technology on a part-time basis in 1997 and in September 2000 was appointed to the position of permanent full time Assistant Law Lecturer. The complainant believes that by reason of her experience and qualifications she was more qualified for the vacant post than the successful candidate.
The complainant also cited incidents (details of which were given in evidence) in which she had been subjected to derogatory remarks by students of the Institute based on her nationality.
The Respondents
The respondents denied all of the allegations made by the complainant and their submission to the Court was essentially a traverse of the complainant’s claims.
The respondents categorically refuted the allegation that the candidate who was ultimately successful at interview was promised the post by the Head of the School of Humanity in advance of the interview. It is the respondent’s contention that the complainant’s allegation in this respect is based on third hand hearsay. Despite the vagueness of the allegation the Human Resource Manager did indicate a willingness to investigate the allegation. However, the complainant specifically requested that the Human Resources Manager should not communicate with the Head of School of Humanities in respect of this matter.
The composition of selection boards within the respondent Institute is governed by Ministerial Regulations made in accordance with Section 11(1)(b) of the Regional Technical Colleges Act, 1992. Pursuant to these regulations a five-person interview board was established. Each aspect of the interview process and the marking scheme was unanimously agreed in advance by all five of the selection board members. The ultimate decision on the outcome of the interview was similarly unanimous. That decision was then presented to the governing body of the respondent for its approval before a formal appointment was made.
It is the respondent’s case that the interview was conducted on the basis of a standard model used by the respondent. Prospective candidates were asked to complete an application form which is used as a starting point at the interview. The complainant did not put all her relevant details on her application form but attached a detailed curriculum vitae. Therefore, at the interview the complainant was first questioned on the details provided on the application form (including her work experience in Ireland). The interview board then moved on to her curriculum vitae, which outlined her work experience in the United States. The respondent contends that the complainant’s assertion that her experience in the United States was inadequately dealt with is plainly incorrect.
The respondent denies that derogatory remarks were made at the interview in relation to the complainant’s publication on the Law of Tort. It is accepted that a member of the interview board referred to the publication as “a nutshell”. However, this is a reference to a series of legal study aids published in the UK. The complainant’s publication was one of a series of similar type study aids published in this country described as “make that grade”.
The members of the selection board totally reject the assertion that the interview was conducted in an atmosphere of frivolity. They further reject the assertions that the complainant was asked facetious questions. They say that the complainant failed to supply any examples of these purported questions and they contend that no such questions were asked.
The respondents reject the complainant’s assertions that the marks that she was awarded were unreasonable and failed to reflect her qualifications and experience. They say that the successful candidate had an extremely strong academic record and this included a first class honours Bachelor in Politics and Legal Science from NUI Galway, a first class honours LLB from NUI Galway and a first class honours Postgraduate LLM in Commercial Law from the University in Cambridge, a Doctorate in Family Law from Trinity College Dublin. The Court was further informed that the successful candidate is a Barrister having been awarded a first class honours Degree of Barrister-at- Law by the Kings Inns.
While the respondent acknowledged that the complainant had excellent academic qualifications they contend that they do not equate to a LLM or a PhD both of which the successful candidate possesses. They say that the exceptional academic qualifications of the successful candidate exceeded those of the complainant and the higher marking the successful candidate received for these qualifications was not unreasonable.
With regard to experience the respondent points out that the complainant received higher marks than the successful candidate. This difference is explained by the complainant’s significant level of previous work experience both in the United States and Ireland both as a lecturer and as a practising Attorney and a Law Clerk.
It is the respondent’s case that the complainant had failed to establish a prima facie case of discrimination on ground of her nationality and accordingly they submit that her claim cannot succeed.
Conclusions of the Court:
The Court has taken account of all of the evidence adduced in the course of the hearing, the salient points of which have been recited above. The Court has been assisted in its deliberations by having available to it a full transcript of all of the evidence adduced in the course of the hearing.
Burden of Proof:
The Court must consider how the burden of proof should be applied in this case. It is now the accepted practice of this Court and of the Equality Tribunal to apply a procedural rule in all discrimination cases similar to that prescribed by the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. In effect this rule provides that where the complainant establishes facts from which discrimination may be presumed it is for the respondent to prove, on the balance of probabilities, that there was no infringement of the principal of equal treatment.
Several authorities were open to the Court on the standard and burden of proof, which a complainant must bear in a case involving discrimination. While the authorities suggest a variety of tests which could be applied in the instant case the Court is of the view that the one which is most apposite is that formulated by this Court inMitchell v Southern Health Board [2001] ELR 201.
The Mitchell case was very similar to the instant case in terms of the issues raised. That case concerned an allegation of discrimination in the filling of a full-time position with the respondent Health Board. Dr. Mitchell contended that she was better qualified than the successful candidate and that a member of the interview board was predisposed against her because of her gender. Relying on Article 4 of the Burden of Proof Directive and the decision inWallace v South Eastern Educational and Library Board [1980] NI 38the Court took the view that it was appropriate to apply a shared burden of proof between the parties. In that case the Court made the following observation.
- “The first requirement of Article 4 of the Directive 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 complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.
Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”
In the Court’s view these are the primary facts which the complainant must prove before the probative burden can be shifted to the respondent.
On the evidence the Court is satisfied that the interview board was properly constituted and conducted its business in line with accepted good practice. Where this is found to be the case, and in the absence of clear evidence of unfairness or manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relevant merits for those arrived at by the interview board.
On the evidence adduced the complainant has not established to the satisfaction of the Court that the marks awarded by the interview board as between her and the successful candidate were irrational or unfair. Moreover, the Court is satisfied that the interview board were entitled to take the view that the successful candidates qualifications were superior to the acknowledged excellent qualifications of the complainant. Finally, it has not been established as a matter of probability that the interview process was carried out unprofessionally in the manner alleged by the complainant or at all.
Accordingly, the complainant has failed to establish a prima facie case of discrimination and her claim cannot succeed.
Determination:
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
15th January, 2004______________________
JB/Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.