Ms. Kathleen Moore-Walsh vs Waterford Institute of Technology(Represented by Mr. Mallon B.L. instructed by Arthur Cox Solicitors)
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Kathleen Moore-Walsh that she was discriminated against by the Waterford Institute of Technology on the grounds of family status and race in terms of Section 6(1), 6(2)(c) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when she was not allocated two research/class free days per week. The complainant also alleges that she was subjected to victimisation within the meaning of Section 74(2) of the 1998 Act in relation to the provision of research/class free days and the supervision of a masters research student.
2. BACKGROUND
2.1 The complainant is employed in the position of Assistant Lecturer with the respondent organisation. She alleges that she has been discriminated against on the grounds of family status and race in relation to the provision of research/class free days and that she has been victimised in this regard because of having already brought an equality claim against the respondent in another matter. The complainant further contends that she was victimised when the masters research student she was supervising was withdrawn from her because was Juris Doctorate degree was deemed not to be equivalent to a Ph.D. The respondent denies the allegations.
2.2 Consequently the complainant referred a complaint to the Director of Equality Investigations on 14th November, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 21st March, 2003 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions from both parties a joint hearing took place on 29th April, 2004. Further additional information was received from both parties and the final information was received on 15th June, 2004.
3. SUMMARY OF THE CLAIMANT'S SUBMISSION
3.1 The complainant is a citizen of the US, married with no dependents. She commenced working as a Law Lecturer with the respondent on a part-time basis in October, 1997 and was made a permanent full-time member of staff in September, 2000. The complainant was employed in the respondent's School of Humanities in the Department of Applied Arts. It is the complainant's contention that the Head of the Department of Applied Arts operates a policy with regard to allocation of research or class free days that discriminates
against her because of her nationality and/or family status. The complainant further alleges that she has suffered victimisation for raising and pursuing equality claims and/or raising and pursuing her rights by contacting the respondent's Equality Officer. In this regard the complainant notes that the Head of the Department of Applied Arts was a member of an interview panel that was the subject of an earlier equality claim before the Equality Tribunal and she alleges that he designed, instituted and communicated to her his policy with regard to the allocation of research days in retaliation for her pursuing the previous equality claim and/or making a complaint about him to the respondent's Equality Officer. Furthermore she alleges that the Head of the Department of Applied Arts informed her that she would not be allowed to supervise her masters research student as he wrongly endorsed the view that her American law degree (the Juris Doctorate) is not a post graduate qualification. It is the complainant's contention that the removal of her masters research student was in retaliation for the filing of two equality claims by her to the Equality Tribunal and as part of a fabricated defence in her first equality claim.
3.2 It is the complainant's belief that the Head of the Department of Applied Arts operates a policy with regard to the allocation of research days that discriminates against her on the grounds of her nationality and/or family status. A research day is a class free day and if granted a research day a lecturer's classes will be scheduled over four days or if granted two research days a lecturer's classes will be scheduled over three days in the week. It results in the same number of classes or hours taught over a shorter period of time. In 2000 the complainant drafted and submitted a Ph.D proposal which was accepted by the NCEA/HETAC. Her supervisor for the Ph.D had left the respondent organisation in September, 2001 and moved to UCC. In the absence of a supervisor the Head of the Department of Applied Arts, in early 2002, suggested that the complainant transfer to UCC to do her Ph.D. As a result the complainant sought two research days (Thursday and Friday) per week to enable her to travel to UCC to undertake her Ph.D. The complainant had one research day (Friday) allocated to her during 2000, 2001 and 2002. However in September, 2002 (after she was accepted in UCC) the complainant again sought two research days and she alleges that the Head of the Department of Applied Arts failed to respond to her request. At the time the complainant had four classes on the Thursday and wished to have them moved to the Monday, Tuesday or Wednesday to facilitate her attendance at the UCC post-graduate seminars on the Thursday evenings.
3.3 According to the complainant the respondent does not have any policy on research days or what constitutes research for allocation of research days. However she says that the Head of the Department of Applied Arts first set out his policy on research days in writing on 21st October, 2002 when he stated "...staff pursuing research/creative work are facilitated with one research day per week. In exceptional circumstances a small number of individual staff are temporarily granted a day per week free of classes on compassionate grounds. I note that you will be required to attend UCC on a regular
basis on Thursday evenings. To facilitate this attendance I am prepared to examine your timetable with a view to possible rescheduling of your Thursday afternoon classes to
Thursday morning ..." The complainant notes that the Head of the Department of Applied Arts did not define compassionate but she notes that the pursuit of a Ph.D does not meet the criteria while family status does. The complainant says that had she known that it was not the policy to give lecturers two research days she would not have applied to UCC to pursue her Ph.D.
3.4 Referring to a report drafted by the respondent's Equality Officer on research days the complainant notes that the two Departments making up the School of Humanities both have 17% of lecturers within each Department enjoying two research or class free days per week (excluding those lecturers availing of timesharing or parental leave). This, she says, represents the highest proportion of lecturers with two research days per week within the organisation. According to the complainant the policy of the Head of the Department of Applied Arts, as set out in paragraph 3.3 above, does not accurately reflect the true practice operating in the Department. In her submission the complainant outlined details of four of the six lecturers in the Department of Applied Arts whom she says had two research days per week as reflected in this report. The complainant notes that two of these lecturers had a family status and two did not. She further notes that all four of these lecturers are Irish while she is American and they have been afforded two research days for more than one academic year. The complainant states that the failure of the respondent to facilitate her request for two research days has a greater impact on her given that the respondent does not consider her American Juris Doctorate degree to be equivalent to an Irish Ph.D and her lack of such a Ph.D negatively impacts on her employment with the respondent organisation. In her submission the complainant also gave examples of twelve other lecturers in the Department of Applied Arts who, in the past, had been facilitated with two research days.
3.5 The complainant states that, following receipt of the written policy on research days from the Head of the Department of Applied Arts on 21st October 2002, she made a complaint in writing to the respondent's Equality Officer. According to the complainant the respondent's Equality Officer described her complaint as a "mere annoyance" and refused to discuss the provisions of the Employment Equality Act, 1998. The complainant states that she took the advise of the respondent's Equality Officer and sought in writing (dated 12th November, 2002) to have the Head of the Department of Applied Arts move her two Thursday afternoon classes and she pointed out that Monday, Tuesday or Wednesday would be preferable to Thursday morning. According to the complainant she was notified by the Head of the Department of Applied Arts around 6th December, 2002 that her Thursday afternoon classes were moved. Then on 29th January, 2003 the complainant states that her timetable was again changed so that she now has four (as opposed to three) classes on the Thursday morning finishing at 1.15p.m.as opposed to 12.15p.m.
3.6 It is the complainant's contention that she has been victimised by the respondent organisation in relation to its policy on research days. The complainant alleges that the Head of the Department of Applied Arts designed, instituted and communicated his policy regarding research days in retaliation for her having referred a previous complaint to the Equality Tribunal and/or her informal complaint to the respondent's Equality Officer on 17th October, 2002 which was ultimately referred to the Equality Tribunal. The complainant, in her submission, expresses concern at the timing of the issue of the policy after her submission in her earlier equality claim had been received by the respondent and after she had made an informal complaint of discrimination to the respondent's Equality Officer. Furthermore the complainant states that the policy does not accurately reflect the past or present practice with regard to the allocation of research days in the Department of Applied Arts and was not published or circulated to staff. The complainant alleges that the attitude of the Head of the Department of Applied Arts changed towards her after 16th October, 2002 when he often failed or refused to acknowledge her written communications with him. Having regard to the normal practice in the respondent organisation as outlined in the Interim Report on the Practice of Timetabling Lecturers for fewer than 5 days per week" carried out by the respondent's Equality Officer the complainant notes that it provides that where a lecturer and Head of Department cannot agree a timetable for the year the matter is referred to the Head of School. However she states that at no time was the issue of her timetable referred to the Head of School.
3.7 The complainant further alleges that she was victimised by the respondent when she was informed by the Head of the Department of Applied Arts that she would not be allowed to supervise her master's research student as her American law degree, the Juris Doctorate, is not a post graduate qualification. It is the complainant's contention that the removal of the research student was in retaliation for her filing and pursuing two claims with the Equality Tribunal and part of a fabricated defence for the respondent to use in respect of the first equality claim before the Equality Tribunal.
3.8 According to the complainant she spoke with the Head of the Department of Applied Arts about the possibility of supervising masters students in the late Spring of 2002 and she states that the Head of the Department of Applied Arts did not make any reference to her American Juris Doctorate degree. Further communication with the Head of the Department of Applied Arts did not, according to the complainant, invoke any discussion of her Juris Doctorate degree. It is the complainant's contention that the Head of the Department of Applied Arts held the view that her American Juris Doctorate degree was equivalent to a masters degree and not to a Ph.D. The complainant disputes this and notes that her American Juris Doctorate degree was listed in the 2000 School Review in the column with Ph.D. The Head of the Department of Applied Arts noted in writing on 29th November, 2002 to the complainant as follows:
"In relation to the proposed supervision by yourself of ...Masters thesis by research, I have discovered that when examining your CV and particularly your Juris Doctorate qualification that the latter is not a postgraduate qualification as I had previously believed, but is in fact a first professional degree (Source: website of the USA section of the International Qualifications Comparison service, NARIC UK which the Irish HEA uses to benchmark non-Irish qualifications.) If you do not hold a post graduate qualification in law, I cannot authorise you to supervise master degrees. However and at your earliest convenience, if you can have your JD awarding University demonstrate that the JD is a postgraduate qualification equivalent to an Irish Masters, then I will look at the matter again."
The complainant disputes the allegation that her degree is not a postgraduate degree. In this regard she submitted to the Head of the Department of Applied Arts a copy of an extract of a book entitled "Law Schools, Legal Education and Legal Literature" by two law professors wherein they state that a Juris Doctorate is a postgraduate qualification. She further sought clarification on the Juris Doctorate degree from the awarding University (St. Louis University School of Law). In response the awarding University stated that a Juris Doctorate is a postgraduate degree and is both a professional qualifying degree and a terminal academic degree. In terms of the UK NARIC the complainant established that the website is designed to assist individuals who wish to have their own qualifications assessed and it provides a database containing information about overseas qualifications. According to the complainant she was informed by the Higher Education Authority of Ireland that the Irish NARIC does not use the UK NARIC website to benchmark non-Irish qualifications. The Irish NARIC acts as an information point only and says that each decision on academic recognition is taken solely by the individual University involved which has complete autonomy in the area. In a letter dated 23rd January, 2003 from the Higher Education and Training Awards Council (HETAC) the complainant was informed that the Juris Doctorate degree is equivalent to the qualifications required under the HETAC regulations for supervision of a masters research programme.
3.9 The complainant then received a copy of a letter dated 29th January, 2003 from the respondent's registrar to the Masters student in which the student was notified that she was being accepted to pursue a masters degree and the complainant was named as her supervisor. The complainant notes that the Head of the Department of Applied Arts never informed her that he now considered her suitably qualified to supervise masters by research students. She further alleges that the Head of the Department of Applied Arts did not inform her that the programme commenced in January, 2003.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent research days are awarded on a case by case basis and following the complainant's request for two class free days per week she was offered one full research day (Friday) and one full afternoon off (Thursday) to pursue her Ph.D in UCC. It is the respondent's contention that the complainant would have had ample opportunity to take her morning classes on the Thursday morning and travel to Cork to attend seminars in UCC scheduled to start at 6.00p.m. The respondent notes that this arrangement was extended to the complainant every week even though, to the respondent's knowledge, these seminars did not take place every week. It is the respondent's submission that it attempted to facilitate the complainant's requests as best as possible and it did not have any regard to her nationality, family status or otherwise in so doing. The respondent notes that the invoices furnished by the complainant to the respondent for payment clearly outline that she is in fact pursuing a LL.M (Research) which she wishes to elevate to a Ph.D in the future.
4.2 The respondent utterly rejects the contention that it operates a policy with regard to research days which discriminates against the complainant on grounds of her nationality and/or family status. It is the respondent's submission that all lecturers, including the complainant, are required to fulfil their contractual duties and by so doing their average working week far exceeds the number of class hours taught in that week. The respondent states that there is no contractual right to a 'research' or 'free class' day. They are a discretionary benefit awarded by the respondent via the Heads of Departments to facilitate staff members in pursuing further study/qualifications. By offering the complainant 1.5 days class free to facilitate her travel to UCC for her studies the respondent submits that it has shown her tremendous goodwill, far in excess of her contractual entitlements. The respondent states that the Department of Applied Arts does not have a formal policy on research days but they are allocated on a case by case basis. The Head of the Department uses his expertise, discretion and judgement in a professional manner to make decisions on these and other matters. According to the respondent the decision is made on objective factors including the lecturer's grade, their existing timetable, the contents of their contracts of employment, the level and requirements of that lecturer's students, their ability to fulfil their required teaching hours and the nature of their proposed course of study. Regard is also given to the impact on the faculty in terms of administration and the capacity of the campus buildings to facilitate the additional classes on certain days. The respondent would also take account of any pertinent circumstance in an individual's personal life.
4.3 In relation to the interim report prepared by the respondent's Equality Officer on the "Practice of Timetabling lecturers for fewer than 5 days per week" the respondent notes that while 17% of lecturers in the School of Humanities had two research days per week, 83% of lecturers did not have research days. Of the entire staff surveyed (257) only 8.5% had the benefit of two research days. The respondent notes that the Report concluded that of the permanent and temporary full-time academic staff over 91.5% did not have the benefit of two research days and were thus in the same position as the complainant. According to the respondent only two out of 38 lecturers in the Department of Applied Arts have the benefit of two class free days. In terms of thecomplainant's request dated 15th October, 2002 for her four classes on Thursday to be moved the respondent states that the Head of the Department of Applied Arts responded directly to the request and endeavoured to facilitate the request by moving the complainant's two afternoon classes thus enabling the complainant to travel to UCC. The respondent denies that the letter from the Head of the Department of Applied Arts to the complainant dated 21st October, 2002 was a statement of a formal policy on research days. In terms of overcoming timetabling difficulties or accommodating students the respondent notes that the complainant failed to offer her views on these issues despite having been asked for them. In relation to other lecturers who were given two research days the respondent states that each case was dealt with on its merits and the objective factors outlined in paragraph 4.2 above.
4.4 In relation to the examples given by the complainant in her submission of other colleagues who were afforded two class free days the respondent notes that, in the case of two of these lecturers, the timetables the complainant has cited from were interim documents and did not reflect the true position. According to the respondent these two lecturers (who had the same family status as the complainant) had four days class contact. In relation to other examples given by the complainant the respondent notes that these lecturers are employed in more senior grades to the complainant and the differences in individual timetables and teaching arrangements reflect their different grades. It is the respondent's contention that these are not valid comparators to the complainant. The respondent also denies the contention that the complainant was discriminated against on the grounds of nationality because she is American and the lecturers who were given two class free days were Irish. According to the respondent nationality is not a relevant factor which is ever taken into account. The respondent submits that statistics reinforce this position and note that only 13 lecturers out of 260 currently benefit from two class free days. According to the respondent the 247 lecturers who do not have two class free days are of a variety of nationalities and may or may not have a family status.
4.5 The respondent denies the allegation of victimisation arising as a result of it allegedly having raised issues about the complainant's qualifications in retaliation for having brought previous equality claims. According to the respondent it reserves the right to question members of its academic staff about their qualifications to ensure that they have the appropriate skills to supervise certain students. The respondent states that the issue of the precise nature of the Juris Doctorate degree qualification was first raised with the complainant by the Head of the Department of Applied Arts on 28th January, 2002 when they discussed her performance at interview for the position of Lecturer. The respondent notes that, at this point (January, 2002), the complainant had not yet made a complaint of alleged discrimination to the Equality Tribunal in relation to her first complaint which was made in May, 2002. It is therefore the respondent's submission that the nature of her qualifications was been queried long before any case was taken by her and, as a result, her claim of victimisation is without foundation and cannot be substantiated.
4.6 The respondent states that the complainant was very reasonably asked by her Head of Department to provide verification that her Juris Doctorate degree was a postgraduate one so as to enable her to supervise a student who was planning to embark on a postgraduate research Masters in Law. The respondent denies that the research student was withdrawn from the complainant as the research had not begun and the student had not been formally assigned to the complainant. When students apply to pursue postgraduate qualifications they complete an application form which they submit to the Registrar's office who in turn liaise with Heads of Departments to obtain their approval for the pursuit of the research. The application is then submitted to the Screening Committee of the Respondent whose function is to analyse the research proposal in depth and to verify the appointment of the proposed supervisor, with regard to their qualifications. Once approval has been obtained the application is sent to the HETAC, the statutory body with responsibility for awarding degrees and postgraduate qualifications in the Institute of Technology sector. The respondent says that the Head of the Department of Applied Arts, on receipt of the application, again raised the issue of the complainant's qualifications. According to the respondent the complainant was told that she may be allowed to supervise the student if the appropriate confirmation be received that the Juris Doctorate degree was a qualification of a level suitable to enable the supervision to take place. When the respondent received this confirmation from HETAC (via the complainant at the hearing of the complainant's first claim of alleged discrimination before an Equality Officer on 19th February, 2003) she was appointed as supervisor of the said research. The respondent submits that the course of action carried out by the Head of the Department of Applied Arts was proper in the circumstances and motivated solely by reference to the requirements of the student and was entirely unrelated to the complainant's nationality, family status or previous complaints to the Equality Tribunal.
4.7 The respondent submits that the complainant has failed in her obligation to establish a prima facie case that she was discriminated against on the grounds of her nationality. The allegation that she was treated less favourably because of her nationality is utterly denied and the respondent contends that the complainant has not offered any evidence to substantiate this allegation. In terms of the two class free days the respondent notes that the complainant has relied on the alleged fact that certain staff members who are Irish citizens have two class free days. The respondent submits that these comparators are not valid as they are of a different grade to the complainant and do not, in fact, have two class free days per week. The respondent notes that the complainant has alleged that she has been treated less favourably in the allocation of research days/class free days than those of colleagues with family status and it is alleged that this was because she (the complainant) does not have family status. The respondent submits that while certain members of the lecturing staff have received two class free days per week on "compassionate grounds" this does not amount to discrimination against the complainant on the grounds of family status. It is the respondent's submission that the provision of this compassionate leave to staff members on foot of their personal circumstances in relation to their family members comes within the provisions of Section 34 of the Employment Equality Act, 1998 and does not amount to discrimination. The respondent states that it does not regard this leave as being comparable to days afforded to lecturers to pursue further academic research, development and commercial publication.
4.8 In relation to victimisation the respondent states that the onus is on the complainant to show firstly that she has been subjected to behaviour which is capable of constituting victimisation2, and secondly that this behaviour resulted from her having made a previous complaint against the respondent3. In the present circumstances the respondent notes that the complainant had made a complaint against it alleging discrimination on grounds of nationality in the context of the recruitment process for the appointment of a lecturer in law and an offer of additional time free from classes was made to the complainant after she had submitted her initial complaint to the Equality Tribunal. This, the respondent contends, belies a culture of victimisation and indeed discrimination. According to the respondent it endeavoured to accommodate the complainant's request for a second class free day per week having regard to the relevant factors i.e. the needs of her students, her grade, the classes she took and the fact that she insisted on having every Friday as a class free day. Furthermore arrangements were made to enable the complainant to finish at lunchtime on the Thursday so that she could travel to UCC to attend seminars commencing at 6.00p.m. According to the respondent this accommodation was offered to the complainant after her initial equality claim and she made no effort to respond to the respondent's request for suggestions as to how to accommodate her fully. It is the respondent's contention that the above does not form any penalisation of the complainant nor does it relate to the previous equality complaint brought by her.
4.9 The respondent denies the allegation by the complainant that her master's student was withdrawn in an act of victimisation. According to the respondent the onus is on a Head of Department to review all aspects of master's research application before referral to the Screening Committee for approval. The respondent notes that the complainant has acknowledged that, as early as January, 2002, the Head of the Department of Applied Arts asked her how her qualifications benchmarked against degrees that could be obtained in Ireland. The respondent states that this was long before any complaints were taken by the complainant. The respondent emphasises that it has always been concerned that each of its students receive the appropriate tuition and level of academic support necessary to fulfil their academic ambition and ability. On receipt of the research application the Head of the Department of Applied Arts wrote to the complainant to notify her that she could not be authorised to supervise the research programme in the absence of proof that her Juris Doctorate was an equivalent postgraduate qualification. In so doing the Head of the Department of Applied Arts relied on the NARIC UK website which the respondent states is used by the Irish HEA to benchmark non-Irish qualifications. Once the appropriate confirmation was received the student was assigned to the complainant and the research programme commenced. It is the respondent's contention that there was no withdrawal or penalisation of the complainant. The respondent states that attempts were made to ascertain the precise nature of the complainant's qualifications long before she made any complaint against it.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent in relation to the provision of research/class free days on the grounds of family status and race. I must also decide whether or not the complainant was victimised within the meaning of Section 74(2) of the Employment Equality Act, 1998 in relation to the provision of research/class free days and the alleged withdrawal of supervision of a masters research student. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by
the parties.
Discriminatory Treatment
5.2 The complainant is an American who is employed with the respondent organisation in the position of Assistant Lecturer and she does not have a family status. She alleges that she has been treated less favourably on the grounds of family status and race in relation to the allocation of research/class free days. The respondent has denied the allegation. In her submission the complainant held that four lecturers had two research/class free days per week and the complainant noted that two of these lecturers had a family status and two did not (see paragraph 3.4 above). On the basis of this argument by the complainant she could not have been treated less favourably on the grounds of her family status as two of her colleagues with the same family status as her were treated more favourably in terms of research/class free days. The onus is on the complainant to establish a prima facie claim of discrimination. Given her own argument at paragraph 3.4 above it is clear that she failed to establish a prima facie claim of discrimination.
5.3 I note that the respondent in its submission held that, (in relation to the two lecturers referred to by the complainant as having no family status but receiving two research/class free days per week) the complainant was quoting from interim timetables whereas the actual timetables for these lecturers showed them as having only one research day per week. The respondent provided me with lecturer timetables for the period from 2000/2001 to 2003/2004. I consider that it is appropriate to compare the complainant with other lecturers of the same grade (i.e. the Assistant Lecturer grade). The respondent was unable to provide me with information on the family status of lecturers as this information is not available to or maintained by the respondent. On this basis it is impossible for me to make any finding on the basis of family status. Consequently I find that the complainant has failed to establish a prima facie claim of discrimination on the grounds of family status.
5.4 The complainant has also argued that she was treated less favourably on the grounds of race in relation to the allocation of research/class free days. The complainant is American. I note that there is another Assistant Lecturer in the respondent organisation who is American. From the 4 years of timetables which were submitted by the respondent I note that the complainant received one research/class free day per week each year and her American colleague only got 1 research/class free day per week in one of those years. In the academic year 2001/2002 one Assistant Lecturer of British Nationality received two research/class free days per week. I note that all other Assistant Lecturers who received research/class free days are of a different nationality to the complainant and they received one such day per week similar to the complainant. I find that there is insufficient evidence to substantiate the complaint of discrimination on the grounds of race in relation to the allocation of research/class free days.
5.5 I am satisfied that the drawing up of a timetable to accommodate staff and students and to have regard to room availability and class sizes is a difficult task. In any one academic year one lecturer may have a more favourable timetable than another and I am satisfied that this may have nothing to do with their gender, marital status, family status, age, race, etc. The complainant has alleged that the Head of the Department of Applied Arts has a policy on research days as set out in paragraph 3.3 above. I do not accept that there is a policy on the allocation of research days. Rather I accept that the allocation of research days is at the discretion of the Head of the Department who must draw up the timetable on the basis of objective factors as set out in paragraph 4.2 above. The respondent, in its submission, has stated that it afforded the complainant the opportunity to offer her views on how the Head of the Department of Applied Arts could overcome timetabling difficulties or the accommodation of students but that she had failed to respond. I consider that it is somewhat factitious of the respondent to put this to the complainant and expect her to respond given that she would not be in a position to know all the factors which would need to be taken into account in drawing up the timetable for the organisation.
Victimisation
5.6 The complainant has alleged that she was victimised by the respondent within the meaning of Section 74(2) of the Employment Equality Act, 1998. According to the complainant the victimisation related to the allocation of research/class free days and the withdrawal of supervision of a Masters Research Student. The respondent has denied these allegations.
(A) Research/Class Free Days
5.7 The background to the allegation of victimisation in relation to research/class free days is set out below. According to the complainant she first asked the Head of the Department of Applied Arts in March, 2002 if two research days could be allocated to her to allow her to devote time to finishing the Ph.D the following year. She says that the Head of the Department of Applied Arts told her (orally) to remind him of her request in September which she did orally. However when the complainant received her timetable mid September, 2002 she had essentially the same timetable as the previous year with one research day on a Friday. As a result of receiving her timetable the complainant wrote to the Head of the Department of Applied Arts on 16th September, 2002 again requesting two research days. The complainant received no response from the Head of the Department of Applied Arts to her request and she approached him in the hallway on 7th October, 2002 and again asked about the two research days requesting that the second day be a Thursday to allow her to travel to UCC to attend evening seminars in relation to her Ph.D. The Head of the Department of Applied Arts stated that he was under pressure and that he would have to look into the matter. The complainant again wrote to the Head of the Department of Applied Arts about the matter on 15th October, 2002 and he replied stating that he was attempting to move the complainant's two Thursday afternoon classes but that this was proving difficult. The following day the complainant wrote to the Head of the Department of Applied Arts and outlined for him her free hours on Mondays, Tuesdays and Wednesdays and gave details of other lecturers who received two research/class free days. When the complainant had received no response by 17th October, 2002 she contacted the respondent's Equality Officer and expressed to her the belief that she was being discriminated against because of her nationality. The complainant received a written response from the Head of the Department of Applied Arts in which he noted that staff pursuing research/creative work are facilitated with one research day per week. He also noted that a small number of individual staff are temporarily granted a day a week free of classes on compassionate grounds. As the complainant was required to attend seminars at UCC on Thursday evenings the Head of the Department of Applied Arts stated that he would endeavour to reschedule her Thursday afternoon classes to facilitate this. On 12th November, 2002 the complainant confirmed to the Head of the Department of Applied Arts in writing that she wished to have her two Thursday afternoon classes moved preferably to Monday, Tuesday or Wednesday. Finally in December, 2002 the complainant's timetable was changed moving Thursday afternoon classes to other times including Thursday mornings. This timetable took effect from January, 2003. It is the complainant's view that the Head of the Department of Applied Arts designed, instituted and communicated to her his policy with regard to research days in retaliation for her previous equality complaint regarding her failure to be promoted to the position of Law Lecturer and/or her complaint to the respondent's Equality Officer on 17th October, 2002. It is the complainant's contention that the Head of the Department of Applied Arts had had sight of her submission in her previous equality complaint and outlined his policy on research days some four days after her complaint of discriminatory treatment to the respondent's Equality Officer.
5.8 From the evidence above I am not satisfied that the complainant was victimised, in relation to the allocation of research/class free days, for having brought a previous complaint against the respondent in relation to another entirely different matter. The evidence does show that the complainant was ultimately in receipt of a day and a half research/class free days per week and was treated as well as, if not better than, many of her colleagues at the Assistant Lecturer grade.
(B) Supervision of a Masters Student
5.9 The complainant has also alleged that she was victimised for having referred complaints of discriminatory treatment to the Equality Tribunal when she was informed in writing on 29th November, 2002 by the Head of the Department of Applied Arts that she would not be allowed to supervise her master's research student. Following her interview for the position of Law Lecturer with the respondent organisation the Head of the Department of Applied Arts (on 28th January, 2002) informed the complainant that she needed a Ph.D. It was the complainant's view that her Juris Doctorate was equivalent to a Ph.D but the Head of the Department of Applied Arts did not agree and held that it was only equivalent to a master's degree. In the Spring of 2002 the complainant was approached by a student who wanted the complainant to supervise her research based masters. According to the complainant she mentioned the student to the Head of the Department of Applied Arts in the late Spring of 2002 and notes that he did not make any mention of her qualifications to supervise a student. Then during the Summer of 2002 the complainant, while in the US, received an email from the Head of the Department of Applied Arts about the proposed masters by the student asking for her opinion on various matters relating to the research proposal and she replied. According to the complainant the Head of the Department of Applied Arts responded positively to her suggestions and at no time did he mention her qualifications to undertake supervision of a research student. The complainant continued to assist the student with her proposal and in September, 2002 the student submitted it to the Head of the Department of Applied Arts. Then on 29th November, 2002 the complainant received a written note from the Head of the Department of Applied Arts in which he stated "In relation to the proposed supervision of yourself of ... Master's thesis by research, I have discovered that when examining your CV and particularly your Juris Doctorate qualification that the latter is not a postgraduate qualification as I had previously believed, but it is in fact a first professional degree (Source: website of the USA section of the International Qualifications Comparison service, NARIC UK which the Irish HEA uses to benchmark non-Irish qualifications.) If you do not hold a post graduate qualification in law, I cannot authorise you to supervise master degrees. However and at your earliest convenience, if you can have your JD awarding University demonstrate that the JD is a postgraduate qualification equivalent to an Irish Masters, then I will look at the matter again." The complainant notes that on or about 5th December, 2002 she received a copy of the respondent's submission in her claim of discriminatory treatment before the Equality Tribunal in the matter of her failure to be appointed to the position of Law Lecturer. In this submission the respondent had stated, as part of its defence in that case, that the complainant's qualifications did not equate to a Ph.D.
5.10 The complainant endeavoured to verify the status of her Juris Doctorate qualification and ultimately was informed in January, 2003 by letter signed by the Information Officer of the Higher Education and Training Awards Council (HETAC) that her Juris Doctorate was equivalent to the qualifications required under the HETAC regulations for supervision of a master's research programme. The complainant provided a copy of this letter to the respondent at the Equality Officer hearing of the claim of discriminatory treatment in
relation to her non-appointment to the position of Law Lecturer on 19th February, 2003. However in advance of this hearing the complainant received a copy of a letter dated 29th January, 2003 which had been sent by the Registrar of the respondent organisation to the Master's student in which she was informed that she had been accepted to pursue a masters degree by research and that the complainant would be her supervisor. This letter had also been copied to the Head of the Department of Applied Arts.
5.11 At the hearing of this claim the respondent stated that it had first raised the issue of the complainant's qualifications with her after the interview for promotion to the position of Law Lecturer on 28th January, 2002. According to documentation supplied by the respondent the research student wrote to the respondent on 24th June, 2002 advising that the complainant had agreed be her supervisor and asking that the Head of the Department of Applied Arts be informed. I am satisfied that the Head of the Department of Applied Arts was informed because during the summer of 2002 he exchanged emails with the complainant, who was in the US at the time, about the research proposal. Then in September, 2002 he informed the complainant that the student's research proposal could go ahead and be submitted to the respondent organisation. Then in an email to the complainant dated 29th November, 2002 the Head of the Department of Applied Arts stated that in relation to the proposed supervision he had discovered on examination of the complainant's CV that her Juris Doctorate qualification is not a postgraduate qualification as he had previously believed. This email does not make sense in the context of the argument by the respondent that the Head of the Department of Applied Arts had questioned the complainant's Juris Doctorate qualification in January, 2002. I note also that at this time (October/November, 2002) the respondent was preparing a response to the complainant's submission in her claim of discriminatory treatment in relation to her non-appointment to the position of Law Lecturer. According to the complainant she received this submission in early December, 2002 and it was dated November, 2002 by the respondent. It seems to me that, in making its defence in the claim of discriminatory treatment in relation to the complainant's non-appointment to the position of Law Lecturer, the respondent realised that it could not argue that the complainant's Juris Doctorate qualification was not equivalent to a postgraduate qualification if it approved her to supervise a master's research student. Consequently it wrote to the complainant and told her that if she did not hold a postgraduate qualification in law it could not authorise her to
supervise a masters degree and it placed the onus on the complainant to clarify her qualifications.
5.12 At the hearing of this claim the respondent denied that it had withdrawn the supervision role from the complainant and it pointed out that there is an onus on it to verify that supervisors are properly qualified to carry out supervision of postgraduate students. I accept that there is a requirement on the respondent to verify that persons appointed as supervisors are properly qualified to carry out this function. However in this case the respondent acted in a manner which led the complainant to believe that she was properly qualified to undertake this function and no queries were raised about her qualifications until the respondent was preparing a defence in her claim of discrimination in relation to the non-appointment to the position of Law Lecturer. Furthermore when the respondent did query her qualifications it held that this issue had only come to its attention whereas at the hearing of this claim the respondent pointed out that it had queried the complainant's Juris Doctorate in January, 2002 following her interview for the position of Law Lecturer. When the respondent did query the complainant's qualifications for supervising a masters research student it put the onus on the complainant to clarify her qualifications. I consider that it was the function of the respondent to clarify the complainant's Juris Doctorate qualification as the onus was on it to approve her supervision of a masters research student. On the basis of the foregoing I find that, in relation to the supervision of a masters research student, the respondent did penalise the complainant for having previously brought a complaint of discriminatory treatment to the Equality Tribunal.
6. DECISION
6.1 In view of the foregoing I find that the Waterford Institute of Technology did not discriminate against Ms. Kathleen Moore-Walsh on the grounds of family status and race within the meaning of Sections 6(1), 6(2)(c) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of that Act when it did not allocate to her two research/class free days per week.
6.2 I find that the Waterford Institute of Technology did not victimise Ms. Kathleen Moore-Walsh within the meaning of Section 74(2) of the Employment Equality Act, 1998 when it did not allocate to her two research/class free days per week.
6.3 I further find that the Waterford Institute of Technology did subject Ms. Kathleen Moore-Walsh to victimisation within the meaning of Section 74(2) of the Employment Equality Act, 1998 in relation to the supervision of a masters research student.
6.4 In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the Waterford Institute of Technology -
- to pay the complainant the sum of €15,000 by way of compensation for the stress suffered as a result of the victimisation to which she was subjected. The amount of this award is to reflect the nature of the victimisation in this claim and to act as a deterrent under EU law.
AND
- to issue the complainant with an apology for the victimisation.
______________________
Gerardine Coyle
Equality Officer
23rd June, 2004
2 Equality Officer Decision - A Complainant v A Department Store - DEC-E2002-017
3 Equality Officer Recommendation - Ms. Mary Helen Davis v Dublin Institute of Technology - EE