FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : WATERFORD INSTITUTE OF TECHNOLOGY (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - KATHLEEN MOORE WALSH DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec E2004 039.
BACKGROUND:
2. The Labour Court investigated the above matter on 4th February 2005. The Court's Determination is as follows:
DETERMINATION:
The respondent, a U.S Citizen, is employed by the appellant as an Assistant Lecturer. In a complaint made to the Director of Equality Investigations on 14th November 2002, she alleged discrimination on the following grounds: -
(a) that the appellant organisation discriminated against her on the grounds of family status and race within the meaning of Sections 6(1), 6(2)(c), and 6(2)(h)
of the 1998 Act in not allocating to her two research/class free days per week.
(b) that the appellant organisation victimised her within the meaning of Section 74(2) of the 1998 Act in not allocating her two research/class free days per week.
(c) that the appellant organisation victimised her within the meaning of Section 74(2) of the 1998 Act in relation to the supervision of a masters research student, because her Juris Doctorate degree was not deemed by the appellant organisation to be of sufficient academic standing to supervise such a student.
Following a hearing on 29th April 2004, the Equality Officer decided on 23rd June 2004 that: -
(a) the appellant organisation did not discriminate against the respondent on the grounds of family status and race within the meaning of Section 6(1), 6(2)(c) and 6(2)(h) of the 1998 Act when it did not allocate to her two research /class free days per week.
(b) the appellant organisation did not victimise the respondent within the meaning of Section 74(2) of the 1998 Act when it did not allocate to her two research / class free days per week.
(c) the appellant organisation did subject the respondent to victimisation within the meaning of Section 74(2) of the 1998 Act in relation to the supervision of a Masters research student.
(d) In regard to (c) above, the Equality Officer ordered the appellant organisation to
(i) Pay the respondent the sum of €15,000 by way of compensation for the stress suffered as a result of the victimisation to which she was subjected and in order to reflect the nature of the victimisation and to act as a deterrent under EU law.
(ii) Issue the respondent with an apology for the victimisation.The appellant organisation appealed this decision to the Labour Court on 20th July 2004 and a hearing took place in Waterford on 4th February 2005.
The parties made lengthy written and oral submissions of arguments which may be summarised as follows: -
Appellant's Case:
When a student applies to pursue a post-graduate course in the organisation, they must submit a completed application to the Registrar’s Office, which in turn liaises with the Heads of Department for consideration and review.
If they approve the application, the student is recommended for acceptance to be registered. The Registrar’s Office then contacts the students and invites them to register, pay fees etc.
At this point, the Head of Department must formally approve the full details of the
project, including inter alia, the research proposal, the methodology and the qualifications both of the student and their proposed supervisor.The College treats the process very seriously, and the processes of selection and verification of the appropriate supervisor and the appointment of a mentor to any student is one that can take some time.The respondent possesses the U.S. qualification of Juris Doctorate (JD). In discussions between the respondent and her Head of Department on 28th January 2002, the respondent asserted that her JD equated to a PhD and therefore qualified her to supervise the student.The Head of Department, being qualified himself by the possession of two Doctorates, held a different view which was that, while a respected qualification, a JD could not be equated to a PhD.
Being also aware that the respondent had herself recently registered to do a PhD, the Head of Department decided to inquire further into the precise status of a JD vis-a vis the proposed supervision of a post-graduate student.
Following the final receipt in September 2002 of a formal research proposal and of further research into the respondent’s qualifications, the Head of Department sent the following e-mail to the respondents on the 29th November 2002
“Dear Kathleen:
- In relation to the proposed supervision by yourself of a 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 hadpreviously believed, but 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 postgraduate qualification in law, I cannot authorize you to supervise master’s 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 this matter again.
Yours Sincerely.
Michael Howlett”
This clearly indicates a request to the respondent to verify her qualifications, via the usually accepted reference points.
In late January 2003, the appellant organisation received a copy of a letter from HETAC (Higher Education and Training Awards Council) which had been contacted by the respondent herself. This letter confirmed as follows that for: -
“ the purpose of supervision of a research masters programme, the Council is satisfied that the qualification of Juris Doctorate (JD) awarded to Ms. Kathleen
Moore Walsh is equivalent, at this time, to the qualifications required under the Higher Education and Training Awards Council regulations for supervision of such a programme”.
The appellant states that it having been notified by HETAC in late January 2003 that the respondent's JD was acceptable for the purpose of supervision of a masters student, the student was formally notified on 29th January 2003 that her application had been approved and that the respondent would be her supervisor. This notification was copied to the respondent
Once this happened, the normal practice was for the student to begin work (this often starts even before formal approval). The respondent would then be due payment for additional hours and allowances in respect of supervision, to be paid on a part-time claim form. While it appears that the respondent did not claim the hours until April or May of 2003, the appellant states that it was at all times, ready to facilitate this, thus showing that it had accepted her as a supervisor with effect from January 2003. The agreement to pay the allowances backdated to January proves also that there was no victimisation or less favourable treatment.
At all times after January 2003, the appellant acknowledged the respondent as the student’s supervisor.
At no time was the respondent removed from her role as supervisor, nor was her masters student withdrawn from her. The application, topic of study and proposed supervisor were being considered, as per standard practice. Theformalrelationship between supervisor and student only began in January 2003. The respondent was never asked to cease or desist from supervising the student. The respondent was merely asked to provide verification of her qualifications to supervise a masters' student.
The appellant also states that the timing of the Head of Department’s e-mail to the respondent on 29th November 2002 was not in any way related to a previous complaint made by the respondent against the appellant organisation under this Act, or that any victimisation arose from this. The timing of the e-mail was dictated by the receipt of the student’s application which was passed on to the Head of Department by the Registrar’s Office in November 2002.
It was however, true that the precise nature of the respondents JD qualification vis-�-vis European qualifications was an issue, as it had been in a different context in a previous complaint taken by her against the appellant organisation.
The appellant states that it is simply untrue, as stated by the Equality Officer in her decision, that the appellant’s actions in querying the status of the JD were part of a strategy to defend the previous case and this constituted victimisation of the respondent. The two matters are separate and unconnected. The appellant acted properly at all times.
The appellant does not agree with the view of the Equality Officer that it was its function to clarify the status of the JD. It states that the onus was on the respondent to prove herself a suitable supervisor of a masters student, including her qualifications.
The respondent states that at all times it engaged fully and in good faith with the respondent. At no time treat her less favourably as “punishment” for taking a previous claim. It at all times tried to resolve her complaint in a courteous and professional manner. Any interaction has simply been that which occurs in any employer /employee relationship, without any malicious intent and keeping the welfare of the College’s students in the forefront at all times. The alleged “victimisation” is in fact legitimate interaction between a Department and its employee.
In relation to the stress allegedly suffered by the respondent the appellant stated that there is no substantive evidence of illness or stress being caused to the respondent. It was submitted by the appellant and agreed in writing by the respondent that any stress suffered by her around the time of the Christmas break arose directly from some unwelcome and disruptive incidents during her classes when her lecturing was interrupted aggressively and quite improperly by protesting student union representatives.
The appellant acknowledges, and did at the time, that the respondent found the incidents upsetting and stressful. The College and the Students' Union apologised for the incidents.
In the course of exchanges about the incidents the respondent complained that the incidents exacerbated her long pre-existing condition of hypertension.
She submitted a medical certificate on 17th December 2002 in which she was advised to “take it easy” until the College returned from holidays on January 12th 2003, as the incidents had led to a rise in her blood pressure.
In her evidence, however, the respondent told the Equality Officer that her stress and hypertension were caused by the College questioning the status of her JD qualification. The appellant states that the facts unquestionably demonstrate that the cause of her stress and hypertension was the intrusion to her classroom by disruptive students.
The appellant states that the respondent's contention that when the Equality Officer’s recommendation issued, the appellant in any way utilized the media for the purpose of humiliating the respondent or causing her distress, is simply untrue.
The appellant contends that Section 74(2) of the 1998 Act defines victimisation as occurring where: -
- “the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith –
(a) sought redress under this Act or any enactments repealed under this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause under any such repealed enactment”.Hence, the appellant states that, to prove victimisation, it must be shown that the conduct complained of is capable of causing some personal detriment.
The appellant submits that the respondent has suffered no personal detriment, at no time was “penalised” for taking a previous case, nor was she treated less favourably. She was not “withdrawn” from supervision and can therefore not rely on the provisions of the 1998 Act.
Respondent’s Case:
In September 2002, the respondent assisted a post graduate student to finalise her application for a masters degree. The full proposal was formulated to the Head of Department in October 2002 and there was no question at that time about her JD or its status. As part of that process the respondent was to be assigned as supervisor to the student.
Once she made submissions in relation to another case which was taken against the appellant organisation, its whole attitude towards her changed. It denied her research /class –free days, or at least failed to facilitate the granting of them to her, despite others in similar academic circumstances being granted them.
On November 29th 2002, the Head of Department sent the previously mentioned e-mail to the respondent. In the respondent’s view, this was an unwarranted disparaging of her JD qualification. She immediately set about an extensive process of justifying the value and status of her qualification. The complainant organisation gave her no assistance and continued to query her qualification, having told her that (a) it was not a post-graduate but a first professional degree and that (b) she could not supervise a masters student.
At the end of January 2003, the respondent received a reply from HETAC, endorsing the value of her JD for the purpose of supervision. This was confirmed in early February by the N.Q.A. The respondent contends that the complainant organisation knew informally about the decision of the HETAC, even before she did, and deliberately concealed the information from her until it had it officially. At no time did the Head of Department inform the respondent that he had reconsidered or rescinded his decision that she was not qualified enough. Accordingly, the respondent lost two hours supervision per week from February to April 2003 and the student lost 3 months of her programme.
The respondent gave lengthy details of the above process regarding her JD qualification and the questions regarding its status and the alleged withdrawal of her student. The respondent alleges that the entire process was conducted in order to fabricate a defence in her other case against the College. The appellant organisation was well aware all the time that her JD was an appropriate qualification to supervise a masters' student.
All of the above caused the respondent extreme stress resulting in hypertension requiring medical treatment and intervention. She was advised to take time off from work and was on certified absence during the entire period of the Christmas holidays in 2002 (17.12.02 – 13.1.03).
According to the Respondent, the stress was caused by
- the disparaging of her JD degree.- the appellant’s failure to communicate information to her regarding the status of the JD.- the Head of Department’s failure to respond to e-mails supporting the validity of the JD.- the withdrawal of her supervision of the masters student.- the failure of the appellant to offer her two research/class free days per week following her submission in regard to her other case under the 1998 Act.
The respondent is also of the view that events as hitherto outlined prove that the appellant did victimise her and did not, as it claims, act in good faith towards her at all times.
The respondent further contends that, given the burden of stress induced hypertension necessitating medical treatment and the fact that the apology is appropriate and costs the appellant nothing, the award of €15,000 to “reflect the nature of the victimisation in this claim and to act as a deterrent under EU law” is insufficient, especially in the light of the public humiliation of the respondent (who was away on holidays) in July 2004, when the appellant chose to make public comments in the media on the merits of the award. However, it should be pointed out that the respondent has not appealed against any of the recommendations of the Equality Officer and the Court cannot therefore consider her complaints.
Determination:
The Court has considered at length the comprehensive submissions of the parties and the provisions of Section 74(2) of the Act. The findings of the Court are that
- the respondent was victimised by the appellant when it questioned the validity of her JD and intimated that it could not permit someone holding this qualification to supervise a masters' student.- this action was related to or influenced by the respondent’s taking another case under the Act against the appellant, in which some factors relating to the respondents JD before had a bearing.- the stress and hypertension of which the respondent complained may to some minor extent, have been contributed to by the events complained of, but the stress was in the main caused by another, unrelated event and the hypertension was pre-existing for many years. However, the increase in the level of stress suffered by the respondent constitutes penalisation under the Act.Given the above conclusion, the Court determines that, while the basic conclusion of the Equality Officer was correct, and while any level of stress caused by victimisation is to be deprecated and should properly be apologised for, the stress suffered by the respondent was in the main caused by unrelated matters and the level of compensation awarded by the Equality Officer was excessive. The Court upholds the Equality Officer’s decision regarding victimisation and an apology but varies the amount awarded by way of compensation to €5,000.
Signed on behalf of the Labour Court
Raymond McGee
26th April 2005______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.