Dr. Ronaldo Munck (Represented by Mr. Horan, B.L. instructed by the Equality Authority) vs National University of Ireland Maynooth (Represented by Ms. Kimber, B.L. instructed by McCann Fitzgerald Solicitors)
- DISPUTE
- The dispute concerns a claim by the Equality Authority, on behalf of Dr. Ronaldo Munck, that he was discriminated against by the National University of Ireland Maynooth on the grounds of marital status, religion, age and race within the meaning of Sections 6(1), 6(2)(b), 6(2)(e), 6(2)(f) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not appointed to the position of Professor of Sociology in the respondent organisation. At the first hearing of this claim the complainant withdrew his complaints of discrimination on the grounds of marital status and religion.
- The dispute concerns a claim by the Equality Authority, on behalf of Dr. Ronaldo Munck, that he was discriminated against by the National University of Ireland Maynooth on the grounds of marital status, religion, age and race within the meaning of Sections 6(1), 6(2)(b), 6(2)(e), 6(2)(f) and 6(2)(h) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not appointed to the position of Professor of Sociology in the respondent organisation. At the first hearing of this claim the complainant withdrew his complaints of discrimination on the grounds of marital status and religion.
- BACKGROUND
- The complainant applied to the respondent University for the vacant post of Professor of Sociology. He was invited to attend for interview but was unsuccessful in his application. It is his contention that he was the best qualified and experienced candidate for the position and the reason he was unsuccessful was related to his age and his race. The respondent has denied these allegations.
- Consequently the complainant referred a complaint of discriminatory treatment to the Director of Equality Investigations on 7th November, 2002 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 4th April, 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 1st February and 15th March, 2005. Further additional information was received from the respondent on 5th May, 2005.
- SUMMARY OF THE COMPLAINANT’S SUBMISSION
- According to the complainant he applied for the post of Professor of Sociology of the respondent organisation by letter dated 3rd April, 2002. In his letter of application the complainant set out in detail his achievements over the years and this letter was accompanied by his Curriculum Vitae. In his Curriculum Vitae the complainant set out comprehensive details of his employment record, his teaching experience, his administrative experience, research interests, invitations to speak, industrial collaboration, publications, contributions to books, journal article, reviews and reports. The complainant was born and reared in Argentina and holds an Argentine passport. However his research and publications span the globe and he has an extensive sociological knowledge of both parts of the Island of Ireland and he has lectured in England, Northern Ireland and Ireland. In 2001 the complainant was granted Irish citizenship by marriage, he speaks Spanish as his first language and is fluent in five other languages including English. While working in the US the complainant was classified as “Latino” in terms of race and ethnicity.
- The complainant was invited by the respondent to attend for interview on 8th May, 2002 by letter dated 25th April, 2002. He was also advised that he could address some of the senior members of the academic community on the previous day (7th May, 2002). According to the complainant he was under the impression that he would be addressing a cross section of the respondent’s academic staff and he says that this was confirmed to him in a telephone conversation with a member of the respondent’s Personnel Department. However among the audience on the day were members of the Sociology Department. The complainant says that his audience on 7th May, 2002 was drawn exclusively from the Sociology Department save for one individual and two members of the Selection Board. In a letter dated 7th May, 2002 from a member of the Sociology Department to the President of the respondent organisation it was confirmed that the Sociology Staff members who had attended the complainant’s presentation had met after the event to exchange views informally. According to the complainant it was decided at that meeting that each one of the staff members present would put forward up to three names as a statement of their preference. The complainant received one vote out of a possible 15 votes since each of the 5 members of staff present had three votes each. The complainant submits that this unofficial selection process was highly irregular, improperly constituted, discriminatory and was operated in the absence of relevant information and ultimately had a detrimental effect on his application.
- The respondent’s preference for appointment to the post of Professor of Sociology was set out in a document dated 8th May, 2002 and the complainant was placed third out of a total of six candidates who presented for interview. According to the complainant he complained to the Secretary of the Governing Authority by letter dated 30th May, 2002 about the procedures adopted by the respondent. In his letter the complainant reminded the respondent that certain qualities were required of perspective candidates and he noted that the successful candidate was an untenured Assistant Professor (which is equivalent to a Junior Lecturer in the Irish and UK systems). According to the complainant it is unprecedented for an individual of the successful candidate’s standing to secure an appointment as a Professor/Head of Department in a University. In his letter the complainant identified discrepancies between his experience and qualifications and those possessed by the successful candidate. He expressed the view that one would expect that the successful candidate would have authored a book, held a research grant and had some degree of administrative and examining experience. The complainant prepared a series of comparative analysis of the qualities possessed by the successful candidate and those possessed by him under a number of headings.
- In a document entitled Summary Report obtained under the Freedom of Information Act, 1997 the complainant notes that it is recorded in this document that possession of three of the following four attributes namely Qualifications/Experience, Research Record, Relevant Administrative Experience must be relevant to the respondent organisation. It is the complainant’s submission that this proviso is of itself questionable and is strongly suggestive of a preference for a local candidate. In another document dated 19th June, 2002 bearing the name of the President of the respondent organisation the purported reasons for the rejection of the complainant’s candidacy are set out. The complainant notes that it is unclear as to the precise reason for the rejection of his candidacy by the Selection Board. He notes that while there is a questioning of the transferability of his Latin American experience there is no reference to his Irish publications, his extensive research into Irish Sociological issues or the fact that he had lectured in the University of Ulster. The complainant states that it appears from this document that the Selection Board agreed the ranking after the President informed them of the views of those present from the Sociology Department at the presentation. It is the complainant’s submission that this process determined the exclusion of his candidacy.
- The complainant further contends that he was discriminated against by the respondent on the basis that he was born Argentinian, baptised a Presbyterian and has spend the predominant part of his working life in Northern Ireland. It is the complainant’s assertion that the reason for his rejection was the respondent’s apprehension that he might impose alien norms and concepts on a Catholic University. According to the complainant he was the best qualified candidate attending for interview and should accordingly have been offered the position by any fair minded and competent selection panel. He further contends that he was not afforded enough time within which to organise himself for the interview process having been given 6 days notice. The complainant notes that the presentation to academics was irregular, subjective and unstructured. According to the complainant the ranking process was carried out without reference to his Curriculum Vitae and he contends that these procedures conferred a marked advantage on internal candidates who would be known to their fellow academics.
- It is the complainant’s contention that the interview itself was a perfunctory affair as little interest was shown in his Curriculum Vitae, there was virtually no discussion of his plan for the Department as requested in the job advertisement. His impression of the interview was that it was inordinately negative as he was asked if he would allow staff in the Sociology Department to carry out their own individual research. It is the complainant’s submission that this line of questioning suggested an alien and authoritarian intent on his part. A member of the interview board from the ESRI noted that the complainant had published mainly on Latin America and mainly in left wing journals. According to the complainant this is untrue. This interview board member also asked the complainant if he agreed with the criticisms of the ESRI as articulated by two named authors and the complainant was placed in an awkward position as he had co-authored a book with one of these authors. The complainant notes that the successful candidate is a co-author with this interview board member and is also closely associated with the ESRI. According to the complainant he was questioned by another interview board member as to his attitude towards selective research funding. Having made his response this interview board member implied that the complainant did not understand the Irish dimension. The complainant abiding memory of his interview was that he was “different” and would not be able to comprehend the Irish “way”. He says that he was made to feel an outsider and that the Selection Board was intent on recruiting a native Irish applicant for the position.
- The complainant notes that two of the external members of the Selection Board were not Professors of Sociology although this is the post they were being invited to fill. It is the complainant’s contention that this would not be normal practice in appointments at this level. According to the complainant the successful candidate did not meet the requirements for the post as specified by the respondent and he is a very inexperienced academic. The complainant alleges that the respondent discriminated against him in its purported assessment of his candidature and in the arrangements which it made for the purpose of determining who should be offered the post. He notes that he was awarded a B for Suitability and also for Qualifications and Experience and these marks were unrealistically low. The complainant notes that the successful candidate was of Irish birth and upbringing and considerably younger. According to the complainant he had a conversation with the President of the respondent organisation on 27th May, 2002 and in the course of this conversation the complainant alleges that the President confirmed to the complainant that the Sociology Department had carried out a “ranking” of the candidates but he insisted that this did not have a decisive sway on the decision. According to the complainant the President also stated that he was amongst the three candidates who could “do the job” but the decision came down to who or whose research would best “fit in” with the Department given their different styles.
- The discrimination complained of in this case relates to access to employment as defined by Section 8(1) of the Employment Equality Act, 1998. In Brennan v J. H. Dewhurst Limited the English Employment Appeals Tribunal decided that the expression “arrangements he makes” encompasses more than setting up the arrangements, for instance, for interviewing applicants for a job. The phrase also includes the manner in which such arrangements are operated, for instance the way in which the interviewing arrangements are in fact conducted. Thus in the Brennan case the employer unlawfully discriminated against women by reason of the discriminatory way the Branch Manager conducted interviews as part of the arrangement made without any discriminatory intent by the District Manager.
- Although direct evidence of a decision to discriminate on racial or religious grounds will rarely be discerned in that the grounds for the decision will ordinarily have to be deduced or inferred, the complainant submits that if his account of exchanges with the President of the respondent University on 27th May, 2002 is upheld, this effectively concludes the matter and he is entitled to succeed. In this regard the complainant relies in particular on the authority of the decision in the case of Noone v North West Thames Regional Health Authority in which a Sri Lankan doctor failed to gain a post with the Health Authority despite having superior qualifications and experience than her white counterparts. The final selection interview was held to have been a sham covering up a wholly subjective decision which was made on grounds of race. This decision was upheld by the Court of Appeal which stressed the importance, in an area where it is difficult to objectively measure the suitability of candidates, of clear selection criteria in order to avoid discrimination.
- SUMMARY OF THE RESPONDENT’S SUBMISSION
- The National University of Ireland, Maynooth (the respondent University) is one of the four constituent colleges of the National University of Ireland. It was established by the University Act, 1997 as a constituent college of the NUI. The respondent University is governed by a Governing Authority of twenty-nine and is similar in composition to that of the other six Irish Universities. Furthermore the respondent organisation is an entirely secular college, completely separate and distinct from St. Patrick’s College Maynooth, an institution which is Catholic in its ethos. The respondent organisation has its own independent governing body, rules of operation, mission and vision for the future. It is a modern, progressive and liberal organisation and does not support any particular religious ethos. According to the respondent its Department of Sociology is one of the largest Departments in the respondent organisation with 14 staff members and approximately 1,000 students. It is at the forefront of research in sociology in Ireland. In 2001 the position of Professor of Sociology became vacant and the Department advertised for applicants for the post of Professor of Sociology in and around February, 2003. A number of applications were received from which six applicants were invited to attend for interview.
- The respondent says that the interview board for assessing applicants for the vacant position was established in full compliance with the Statutes of the respondent organisation. The interview board, according to the respondent, conducted its affairs in a proper and professional manner and held that three applicants out of the six interviewed were suitable for appointment to the position. The complainant was ranked third in the order of merit. The respondent states that it was the unanimous view of the interview board that the ranked order of the applicants was appropriate and reflected the overall suitability of candidates for the post. According to the respondent no weight was attached to the views of members of the Sociology Department and those views were not made known to the interview board until after the ranking was determined. The respondent notes that members of the Sociology Department, drawing upon their impressions of the candidates’ presentations, prioritised the first two applicants in the same order as the interview board while the complainant was ranked fourth. According to the respondent both assessments were independent of each other and neither ranking was informed by knowledge of the other. The respondent denies that there was any discrimination against the complainant in being ranked third. Rather the successful candidate was ranked first because he was deemed superior in terms of merit and qualifications to the complainant.
- The respondent points to the fact that the appointment of a Professor must be considered in the context of the highly competitive atmosphere of Universities nationally and internationally, not only for students but also for research funding. The respondent notes that the appointment of a Professor represents an investment for it of over €2 million and this investment must work in terms of helping the respondent to compete. It must be a good investment in terms of achieving and fulfilling the strategic aims as set out in the respondent organisation’s strategic plan and the respondent says that the only consideration which can play a part is ‘who is the best for the job’.
- Having regard to the legislation the respondent states that for the complainant to succeed in his complaint of discrimination he must show that he was less favourably treated than another person on one of the discriminatory grounds. It is the respondent’s contention that the complainant has failed to adduce any direct evidence of discrimination in relation to his allegation that he was treated less favourably in terms of access to employment and in terms of the arrangements which were made for the purpose of deciding to whom employment should be offered. Rather the respondent says that the complainant seeks to draw an inference of discrimination from the fact that he was not ranked first for the position on the basis that his merits and qualifications were superior to those of the successful candidate. The respondent denies this contention and holds that the merits and qualifications of the successful candidate were superior to that of the complainant. According to the respondent the successful candidate is a scholar of such brilliance that he is recognised as the foremost sociologist of his generation. In the light of these superior qualities the respondent submits that there is no room whatsoever for an inference of discrimination to be drawn.
- The respondent notes that the complainant seeks to rely on the judgement in Noone but it submits that the inference of discrimination was only found having regard to Dr. Noone’s superior qualification, experience and publication. The respondent says that, in this case, the complainant did not have superior qualifications to the successful candidate. It is the respondent’s submission that the complainant’s situation can be distinguished from that of Dr. Noone on three separate grounds and that no comparison can be drawn from the facts in Noone and the situation of the complainant. Firstly the complainant did not have superior qualifications to the successful candidate. Secondly Dr. Noone’s racial background and the issue of not fitting in was the only reason why she was not appointed. In the complainant’s case the suitability of his research was only one criterion which came into play in the ranking of applicants for the position of Professor of Sociology. An additional important criterion was scholarly brilliance and the respondent says that the successful candidate was superior in this regard. Thirdly in Noone it was the racial background of the candidate that was at issue, a factor of no relevance to the job. In the case of the complainant it was his overall suitability to the respondent organisation, including his teaching and research interests which was at issue and not his racial background. According to the respondent it was the suitability of this research that was highly relevant to the job of Professor of Sociology which was a valid and non-discriminatory criterion and which can be objectively justified.
- The respondent notes that the complainant has alleged that he was discriminated against in relation to access to employment on the grounds of race and religion. According to the respondent the complainant must adduce evidence to show that he has been treated less favourably than the successful candidate by reason of his race and religion and it is the respondent’s contention that the complainant has failed in this regard. The respondent states that the complainant’s assessment of the successful candidate’s qualifications was based on inaccurate and incomplete information given that the copy of the successful candidate’s CV as submitted by the complainant omitted significant published works and administrative experience. It is the respondent’s submission that the comparative analysis undertaken by the complainant and referred to in paragraph 3.3 above is meaningless because the successful candidate’s CV is outdated and incomplete and is entirely subjective, biased and grossly self-serving having been compiled by the complainant himself. The respondent states that the qualifications and merits of the successful candidate as assessed against the selection criteria for the position of Professor of Sociology clearly show that the successful candidate was the superior candidate for the position.
- The respondent states that the criteria required for the position of Professor of Sociology were:
- Excellence in Research and a substantial Record of Scholarly Publications;
- Leadership Qualities;
- Teaching and Examining Experience;
- Experience of Administration.
According to the respondent the complainant was deemed appointable on the basis of these criteria but the successful candidate was superior. The respondent states that the successful candidate is recognised nationally and internationally as a leading scholar and has a record of research excellence. He achieved first class honours in his undergraduate university, Trinity College Dublin which is recognised as the best Sociology Department in Ireland. He was also first in his class and awarded the Gold Medal. He co-authored a monograph with a Professor who is widely regarded as a leading Irish Sociologist of the last 30 years entitled “Pathways to Adulthood”. The successful candidate took his PhD at the University of California, Berkeley which has a Department of Sociology which has been ranked number one. Furthermore the successful candidate was awarded the University’s prestigious fellowship which is awarded to one student at most in each cohort. After this the successful candidate obtained a place at the University of California at Davis and had a choice of jobs at seven or eight leading Universities in the US. According to the respondent the successful candidate’s letters of reference show him to be a scholar of exceptional and unusual brilliance. He was described by a leading international sociologist as
“easily one of the best students with whom I have worked in the last decade. What makes him so unique is the breadth of his perspectives and his fertile sociological imagination … He is a born leader, subtly showing the way forward, bringing out the best in others”.
The respondent notes that the successful candidate’s list of publications show that he has a superior record of research excellence compared to that of the complainant. The successful candidate has written two books, one of which is to be published by Cambridge University Press (a publisher of the highest calibre) and his publications are in highly prestigious locations. The successful candidate has written over 8 articles in leading refereed journals, as well as 7 articles in books published by leading publishers. It is the respondent’s submission that these publications are recognised as superior in quality to those of the complainant and appear in more prestigious publications. The respondent accepts that the complainant has written a larger number of papers and books than the successful candidate but notes that many of them are not published by publishers of the same prestige as those of the successful candidate. - The respondent states that persons appointed to a University must have the ability to enhance the reputation of the University and the Department to which they are attached and can enable a Department to bid for and secure research funding from available external sources. Securing such funding is a highly competitive exercise. According to the respondent the successful candidate’s research best fulfil the criteria set by the Programme for Research in Third Level Institutions (PRTLI) and secure the coveted research funding. The successful candidate’s research interests are rooted in Ireland and centre around the recent transformation of Irish Society in the era of the Celtic Tiger. His doctoral thesis is on the position of the Irish Software Industry in the Global Economy. By contrast the complainant’s main strength was Latin American Studies, a subject which has little direct relevance to the Irish Economy. The respondent denies the complainant’s assertions that he has extensive sociological knowledge of both parts of the Island of Ireland or that he has conducted extensive research into Irish sociological issues and it notes that of the complainant’s published books only 3 out of 31 are on Ireland and none of these have been written in the last 10 years. It is in the context of the above that the respondent described the complainant’s research as “not fully fitting in” with that of the Department and it submits that this comment did not refer to the personal characteristics of the complainant.
- Based on a comparison of the CVs of the complainant and the successful candidate the respondent was satisfied that the successful candidate’s qualifications were superior to the complainant. The successful candidate holds an MA in Sociology and a Diploma in Statistics as well as a BA with First Class Honours and a PhD in Sociology. By comparison the complainant holds an honours BA and a PhD. The respondent says that it was the view of the interview board that the successful candidate had sufficient administration and leadership experience for the post of Professor of Sociology and that he had sufficient teaching and examining experience for this post. It is the respondent’s contention that the successful candidate’s superior qualifications more than justified his appointment and no inference of discrimination can be drawn as alleged by the complainant. The respondent submits that the best judgement of the relative merits of both candidates is the fair, independent and objective judgement of their peers backed up by appropriate documentation. Such assessment took place by a properly constituted interview board which held unanimously that the successful candidate was the best person for the job.
- In terms of the allegations by the complainant that the successful candidate was “too young and too inexperienced” for the position of Professor of Sociology the respondent denies that it discriminated against the complainant on the grounds of age. At the time of appointment the successful candidate was 34 years old while the complainant was 52 years old. The respondent notes that the selection criteria listed, inter alia, teaching and examining experience and experience of academic administration but do not require extensive or many years experience in these areas. Within the respondent organisation the respondent notes that there are currently 23 staff members who have been appointed Professors and their age of appointment has ranged from 28 to 52 years. Furthermore the respondent notes that in relation to the 23 current Professors in the respondent organisation only four were Professors or Associate Professor at the time of their appointment. Of the Professors already appointed it is more usual that they were of the rank of Lecturer or Senior Lecturer (similar to the successful candidate) rather than a higher rank.
- The respondent denies the complainant’s allegation that he was discriminated against on the basis, inter alia, that he was born an Argentinian. It is the respondent’s contention that the complainant has adduced no evidence of discrimination against him on the grounds of race or national origin. According to the respondent the selection committee and the interview board was not aware of the complainant’s place or birth or national origin at the time of the interview. It is the respondent’s submission that there are no grounds for drawing any inferences that the complainant was discriminated against on the grounds of race or national origin on the basis that he was not selected for the position of Professor of Sociology as the best applicant for the job was selected. The respondent notes that of the 23 Professors in the employment of the respondent organisation approximately 45% were not born in the Republic of Ireland.
- The respondent notes that the complainant has alleged that the giving of a presentation by applicants in advance of the interview was designed to bestow an advantage on internal candidates who would be known to their fellow academics. The respondent denies that this was the purpose of the presentations or that there was any preference of this nature. According to the respondent the complainant rather than the successful candidate was more likely to be considered an internal or local applicant as he is married to a member of the respondent Department of Sociology and is a frequent visitor to the Department and to Departmental Social functions. He is also a frequent visitor to the respondent organisation’s dining hall and in recent years he has pursued collaborative research with members of the Department. By comparison the respondent says that the successful candidate could not be deemed to be local. He took his BA in Ireland but completed his education and commenced employment at Universities in California in the US. The respondent notes that the successful candidate had not lived in Ireland over the past ten years but had settled in California and had married an American-born professional. According to the respondent the successful candidate did not have research links with the respondent organisation or any of its members.
- The respondent notes that the complainant has expressed dissatisfaction with various aspects of the procedure adopted by the respondent organisation for the selection of the Professor of Sociology and in particular the presentation process where it is alleged that the ranking of candidates constituted an unofficial or parallel selection process that was irregular, improper and discriminatory. It is the respondent’s submission that the procedures adopted by it for the appointment of an applicant to the position of Professor of Sociology were the same for all applicants. The same time was allowed to each applicant to prepare themselves for interview. In relation to the ranking of applicants by the audience for the presentations the respondent states that these views did not in any way determine or influence the decision of the interview board. The views of the audience to the presentations were only communicated to the members of the interview board after the ranking had taken place. The respondent submits that the interview board was properly constituted and best qualified to adjudicate on the relative merits of all candidates. The respondent denies that the interview was a perfunctory affair as alleged and says that the complainant was treated in exactly the same way as all other applicants. Each interview lasted 1 hour. The respondent further denies that any questions put by any of the interview board members were discriminatory in any way.
- In conclusion the respondent denies that it discriminated against the complainant in any way in this appointment process. Rather it undertook a fair and discrimination free process to select the applicant best suited for the position of Professor of Sociology. According to the respondent the complainant has adduced no evidence to support the allegation of discrimination. The decision to appoint the successful candidate was objective, logical, rational and well judged and the respondent says arrived at in a non-discriminatory manner.
- SUMMARY OF COMPLAINANT’S RESPONDING SUBMISSION
- The complainant contends that the previous incumbent of the post in contention advised him in December, 2001 that he did not mind who succeeded him “so long as it was not a foreigner”. The complainant notes that the selection procedures laid down in the statutes do not provide for the process which occurred on 7th May, 2002 when two members of the selection board were in attendance at the presentation which the complainant was invited to give to academic staff who were, almost all, in fact members of the Sociology Department. It is the complainant’s submission that this process was only calculated to undermine or subvert the formal interview procedure and the complainant notes that the respondent has not offered any credible explanation for same. The complainant states that as two members of the final selection board were present at the presentation on 7th May, 2002 they were appraised in advance of the views of the Sociology Department. It is the complainant’s submission that, in these circumstances, they cannot be regarded as impartial or free from taint in that they could scarcely be expected to reach a conclusion on the selection of a candidate which ran counter to the views already expressed by the Department. The complainant contends that Dr. Smyth’s admission that the Sociology Department had carried out a ranking of interviewees which, while it did not have a decisive sway on the outcome, itself establishes that it had some influence. The complainant notes that the presentation body was chaired by Dr. Smyth, the then President of the respondent organisation and chair of the selection panel. It is the complainant’s assertion that this body influenced events by their promotion of the successful candidate in that he received their nomination while, in putting forward three names for appointment, they were effectively subverting the official selection process and applying a veto.
- The complainant again re-iterates his view that the successful candidate was demonstrably inferior in terms of merit and qualifications and in this regard cites a letter from a Professor of the University of Ulster (who was a member of the NUI Maynooth Search Committee) in which this Professor opines that “a candidate to beat Dr. Munck would need to have an even better overall profile”. It is the complainant’s contention that the successful candidate was not in fact short-listed for the post until one of the interview board members intervened. The complainant contends that this was inappropriate as this interview board member had a personal connection with the successful candidate, he promoted his candidature, he was a member of the committee responsible for drawing up the job specification for the post in question, sat on the interview board and participated in the board’s deliberations. The complainant further notes that he (the complainant) was assessed as better qualified than the successful candidate in that he was awarded a “A” grade (exceptional) versus the successful candidate’s “C” grade (adequate) in terms of Qualifications, Experience, Research, Administration and Suitability. According to the complainant the extraordinary divergence between the short listing and the final result has never been addressed or explained by the respondent. It is the complainant’s contention that the “C” marks awarded to the successful candidate excluded him from final appointment and he says that the successful candidate was not short listed on merit but through the intervention of an external assessor who knew him personally.
- The complainant states that he accepts that direct evidence of discrimination is elusive and that the preponderance of his evidence will enable appropriate inferences to be drawn. In this regard the complainant cites the following examples:
One of the interview board member’s opening salvo at the complainant’s interview was “Most of your work is on Latin America is it not”. The complainant contends that this assertion was not true and served only to obscure his actual scholarship.
Another interview board member insisted on emphasising how different the “Irish academic model” was at interview.
The Chairperson of the Interview Board observed to the complainant on 27th May, 2002 that “the decision came down in the end to who or whose research would best fit in with the Department”.
In the Summary Report prepared by the Chairperson of the Interview Board dated 19th June, 2002 it was recorded that “…the transferability of the complainant’s experience of Latin America was questioned …” and “there was a questioning of how it would connect with established NUI Maynooth Sociology and NIRSA …”. The complainant submits that these conclusions were prejudicial and erroneous and no reference or recognition was given to his actual experience or Northern Ireland or South Africa which created a distorted impression of his candidacy. - The complainant relies on the following cases in support of his claim of discrimination:
King v Great Britain China Centre - Where a complaint of racial discrimination had been made on the basis of fact alleged to be consistent with the applicant having been treated less favourably than others on racial grounds, and the Tribunal, when considering the inferences to be drawn from the facts, had found the existence of discrimination and a difference in race, it was permissible, and did not reverse the evidential burden of proof, for the Tribunal to require the employer to give an explanation for that discrimination and, in the absence of any satisfactory answer, to infer that it had been on racial grounds, and that accordingly, the Tribunal had been entitled to seek an explanation from the employers for their failure to select the applicant for interview and its finding of racial discrimination would be restored.
Chattopadhyay v Headmaster of Holloway School - “…a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the Respondent. All that the Applicant can do is to point to certain facts which if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases, it is only the Respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent motivations. It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the Respondent can satisfy the industrial tribunal that there is an innocent explanation”.
Nagarajan v London Regional Transport - In this case the Court of Appeal upheld the findings of the Employment Appeals Tribunal but the House of Lords held that “A finding of direct discrimination on racial grounds … did not require that the discriminator was consciously motivated in treating the complaint less favourably, it being sufficient if it could properly be inferred from the evidence that regardless of the discriminator’s motive or intention, a significant cause of his decision to treat the Complainant less favourably was his race”. The House of Lords also observed that “It was satisfied if the arrangements made operated so as to discriminate whether or not there was any discrimination in the actual making of the arrangements and that since the inferences drawn by the Industrial Tribunal were plainly within its fact finding functions, the Appellant’s case had been made out”. - The complainant notes that he has authored 10 books, co-edited 5 books, written 20 book chapters, has 60 referred journal articles to his name and has his scholarship index translated into 6 languages which are used as set texts in Universities globally. By comparison the successful candidate has only one book published (and this was not published at the time of interview). He has one co-authored research report (published in-house by the ESRI), has written 4 book chapters and 2 of these are co-authored. In relation to referred journals the successful candidate has 4 and one of these is co-authored. The complainant notes that the successful candidate’s work is only available in English. In relation to experience of providing leadership in teaching and academic administration the complainant notes that he has been a Professor of Sociology since 1994 and a senior lecturer since 1985. The complainant has been Head of Department and has chaired a number of committees including Teaching, Research, Budget, Postgraduate and Examination. He has extensive experience of proven leadership in teaching and his academic administration experience has taken him to three Universities around the world. By comparison the complainant states that the successful candidate, at the time of interview, was only an entry point lecturer. The complainant contends that he has an exceptional and proven background of excellence in research and he rejects the respondent’s assertion that the successful candidate has a superior record of research excellence which he argues appears to be based primarily on the prestige of his future publishing house.
- The complainant notes that the respondent, in its submission, has referred to the successful candidate as the outstanding ‘Irish sociologist of his generation’ and submits that this contention is consistent only with the argument that there was a preference for an Irish candidate. The complainant cites from an email written by one of the interview board members in relation to the successful candidate as follows:
“[successful candidate’s] research interest relating to globalisation, the development of the information technology sector, the role of the state in economic development and issues of territoriality and space are ones that are central to the development of Irish Society …”
According to the complainant the inference of discriminatory treatment based on grounds of race can clearly be drawn from these observations. The complainant notes that nowhere in the advertised job specification criteria or the more detailed criteria that there was a requirement that the suitable candidate should have a particular research focus. - In relation to research funding the complainant notes that the successful candidate has no track record of external grant earning having obtained only $19,500 from his own University. By contrast the complainant has earned over £220,000 (sterling) in external grants. The complainant says that in its submission the respondent has imputed a new criterion in relation to this appointment namely the potential to attract funding. In this regard the complainant says that the respondent is urging that the successful candidate has a particular cachet which would enable the Department of Sociology to secure funding and investment. The complainant notes that this was never a criterion for applicants applying for the position as Professor of Sociology in the respondent organisation. The complainant submits that an Irish candidate would be better placed to fulfil this particular research focus but he notes that he has extensive research focussed on Ireland. As the respondent, according to the complainant, has given little or no credence to these publications in circumstances where the successful candidate has no book published then the complainant contends that there can be no doubt that the respondent chose the successful candidate because he was Irish.
- In relation to the short listing process the complainant notes that the successful candidate was graded ‘C’under all 4 categories which was rated as adequate. Whereas the complainant received 4 A’s which was rated exceptional. The complainant notes that the short listing procedure was carried out by 3 senior members of the respondent organisation who also sat on the interview board. According to the complainant the successful candidate was excluded from the selection process but on foot of an application by another member of the interview board the successful candidate was re-admitted to the process on the basis that he was ‘actually the outstanding candidate’. The complainant notes that at the final grading stage he was downgraded and deemed barely above the line of appointability. Significantly the complainant was relegated under the heading of ‘qualifications/experience’ and a particular ground relied upon was the ‘transferability of his experience of Latin America’. It is the complainant’s submission that this downgrading constitutes direct discrimination on the basis of race. The complainant notes that the successful candidate progressed from straight C’s to A-, A, B and A+ under the four selection criteria. In terms of the successful candidate’s elevation from C to A under the heading of ‘qualifications/experience’ the complainant stats that this dramatic advancement has not been rationally explained in circumstances where ‘qualifications/experience’ are objective factors and where the successful candidate’s had been deemed adequate at the short listing process.
- CONCLUSIONS OF THE EQUALITY OFFICER
- The issue for decision in this claim is whether or not the complainant was discriminated against on the grounds of his age and race in terms of Sections 6(1), 6(2)(f) and 6(2)(h) and contrary to the provisions of Section 8 of the Employment Equality Act, 1998. 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.
- The position of Professor of Sociology became vacant with the retirement of the incumbent of the post on 30th September, 2001. According to the respondent posts such as this one are not filled until one year after the post becomes vacant. In the Autumn of 2001 it was agreed to proceed with the filling of this post. A Search Committee was set up comprising:
§ the Vice President of the respondent organisation who chaired the committee;- a Research Professor with the ESRI;
- Professor of Geography in the respondent organisation;
- Professor of Sociology at the University of Ulster;
- a member of staff in the Sociology Department in the respondent organisation who acted as Secretary.
- An Assessment Board was set up to undertake the short listing and interview processes. The composition of the Assessment Board was decided by the Academic Council in conformity with the Statutes of the respondent organisation. The Assessment Board comprised:
- President of the respondent organisation
- 2 members of the Academic Council
- Professor of Geography in the respondent organisation (He was also a member of the Search Committee)
- Professor of Psychology in the respondent organisation
- 2 external Assessors appointed by the Academic Council
- Research Professor in the ESRI who is reputable in European and International Sociology circles (He was also a member of the Search Committee)
- Professor of Education at University College Dublin who has a PhD in the Sociology of Education.
- The short listing process was undertaken by the Assessment Board without sight of applicants’ references. The respondent states that it is not always possible to have a full meeting of the Assessment Board to draw up the short list. In this case the President and the 2 internal members of the Assessment Board undertook to short list candidates. Applicants were assessed under the following headings:
- Qualifications/Experience
- Research Record
- Relevant Administrative Experience Suitability/Other
“Although he is at an earlier stage of his career than the other candidates, I think a strong case can be made that he is the outstanding Irish sociologist of his generation. His key publications are in highly prestigious locations such as the Annual Review of Sociology (2), the Encyclopaedia of Sociology, Politics and Society, the International Journal of Urban and Regional Research and in a volume edited by Michael Buroway who is undoubtedly among the first rank of international sociologists. Taken together with the fact that his PhD. is from Berkeley, which is one of the outstanding Sociology Departments in the US, I would consider that his track record to date suggests that in terms of sheer intellectual capacity he is actually the outstanding candidate. I do of course appreciate that other factors must be taken into account in making a professional appointment. [The successful candidate’s] research interest relating to globalisation, the development of the information technology sector, the role of the state in economic development and issues of territoriality and space are ones that are central to the development of Irish society and mesh nicely with the existing agenda of the department. [The successful candidate] possesses a rare combination of quantitative and qualitative skills which allows him to operate across a wide range of sociological themes.”
The Professor of Education in UCD did not submit her views in writing. At the hearing of this claim she indicated that she did accept the initial short list that was sent to her with the applications from all candidates. After the comments were received from the Research Professor in the ESRI the Professor of Education in UCD says that she met with the President of the respondent organisation after another meeting and they reviewed the application from the successful candidate and following that review she did not object to his inclusion on the short list. Ultimately six candidates were placed on the short list. The grades awarded to applicants on the short list assessment, which was carried out by three members of the Assessment Board, were not revised in the light of comments made by the external assessor. - Once the short list was agreed the respondent organisation sought references for all candidates. Candidates were asked to name 3 referees and all referees were approached. Where a candidate named more than 3 referees only the first 3 were approached. The respondent states that it was working within a tight framework and that it had expected that candidates had notified referees in advance of making their applications. According to the respondent it received one reference for the complainant whereas it received two references for the successful candidate. All candidates being called for interview were invited to make a presentation on a day prior to the interview. An invitation was extended to members of the Academic Council and members of the Department of Sociology to attend the presentation. The respondent says that, in total, 60 persons were invited to attend the presentation but it would not be known until the day how many would attend. In reality about 10 to 16 persons attended. The presentation was chaired by the President of the respondent organisation and the Professors of Geography and Psychology, who were members of the Assessment Board, also attended the presentation. Candidates were asked to stay close to their allocated time and there was to be no questions from the audience. After the presentation candidates had the option of availing of a tour of the respondent organisation by a designated person who was not associated with the selection process.
- The Assessment Board met before the interviews and agreed the seating in the interview room. They also agreed areas of questioning for each Assessment Board member. It was decided that interviews would last approximately 1 hour. According to the respondent it was further agreed that the Assessment Board would question applicants on the following areas:
- The President of the respondent organisation to open the interview starting with the applicant’s CV and then outlining how the interview would proceed. At the end the President would come back on questions previously asked and afford the applicant the opportunity to provide any additional information which he/she considered beneficial to his/her application.
- The Professor of Education from UCD addressed the area of Teaching.
- The Professor of Psychology addressed the area of the applicant’s perceptions of the funding mechanisms available.
- The Professor of Geography addressed the overall strategic direction of the applicant’s research and how that fitted into the overall strategic direction of the respondent organisation and where the respondent organisation was on the national scene.
- The Research Professor from the ESRI discussed the applicant’s research in more specific detail.
- Qualifications and Experience
- Research Record
- Relevant Administrative Experience
- Suitability/Other
- The Assessment Board first had to decide which applicants were appointable to the position. Having discussed each applicant the Assessment Board decided to deem three applicants as appointable to the vacant position. The attention then focussed on these three applicants and the Assessment Board had to rank these applicants in order of merit. According to the respondent there was significant discussion over the ranking of these applicants and the complainant was ranked third. The respondent says that, after the interviews and before the Assessment Board started to assess applicants, the President of the respondent organisation (who acted as Chairperson of the Assessment Board) received a letter from the Sociology Department which ranked applicants in order based on their presentations. According to the respondent the President of the respondent organisation had sought, as a matter of courtesy, the views of the members of the Sociology Department. While these views were sought the respondent says that they were of no relevance to the deliberations of the Assessment Board. It is the respondent’s submission that the President informed the other Assessment Board members of the views of the Sociology Department after the Assessment Board’s own deliberations had been completed. The Sociology Department awarded most nominations to the successful candidate and the least nominations to the complainant placing him in fourth position. Some days after the interviews the Chairperson of the Assessment Board (i.e. the President of the respondent organisation) wrote a Summary Report outlining details about why the successful candidate was placed first and why the complainant was placed third.
- Allegations
As a result of failing to be appointed to the vacant Professor of Sociology position the complainant alleges that he was discriminated against by the respondent on the grounds of his age and his race having regard to the provisions of the Employment Equality Act, 1998. The respondent denies the allegations. - Burden of Proof
The first issue to be addressed is whether or not the evidence has disclosed a prima facie case of discrimination so as to shift the probative burden on to the respondent. Both parties to this claim made arguments on the issue of burden of proof. Having regard to both arguments I consider it appropriate to follow the approach of the Labour Court in Icon Clinical Research Limited and Djemma Tsourova in which it was held as follows:
“In many previous determinations the Court has applied a shifting burden of proof in line with that set out in the Burden of Proof Directive, not only in gender cases, to which its wording is directed, but also to cases involving the other discriminatory grounds. In so doing the Court has sought to construe the different provisions of the Act consistently with each other. That approach is in line with the practice in the UK in applying similar legislative provisions (see most recently the decision of the Court of Appeal in Igen Ltd & Ors v Wong, [2005] EWCA 142 (18th February, 2005)”. - The respondent advertised the vacant position of Professor of Sociology. In its job advertisement for this position the respondent indicated that the successful candidate “will lead the ongoing development of the Department in both research and teaching”. It was further stated that applicants should have “a proven background of excellence in research including a substantial record of scholarly publications. They should also have experience of providing leadership in teaching and in academic administration”. In the detailed job description which was available to applicants on request it is stated therein as follows – “Applicants …should have a record of research excellence together with teaching and examining experience. Leadership qualities and experience of Academic Administration are also required. The Professor is responsible for strategic leadership within the Department and is expected to play an active role in the teaching and examination process as well as fostering links with the wider community. …the Professor will …have the opportunity to manage and direct the Department at this important stage in the development and expansion of the University”.
- In assessing applicants for short listing purposes the criteria adopted by the Assessment Board was Qualification/Experience, Research Record, Relevant Administrative Experience and Suitability/Other. Following the first hearing of this claim the respondent set out in writing what the Assessment Board considered under each of the criteria and this is attached as Appendix A. I note that this document was not drawn up in advance of the interviews but on foot of the questions I put to the respondent in the course of the investigation of this claim some years after the interviews took place. It is noteworthy that the language of this document is set out in the present as opposed to the past. Given that this document is an outline of what the Assessment Board considered under the various criteria one would expect it to be written in the past as opposed to the present. I am conscious that this document was drawn up in the full knowledge of this claim and could therefore have been drafted to reflect the respondent’s defence in this claim. It is clear that the criteria Qualifications/Experience is an objective one and the marking of applicants under this heading should reflect the qualifications and experience they have attained in their careers.
- I note that at the short listing stage the complainant was awarded an ‘A’ for Qualifications/Experience and this represented exceptional. By contrast the successful candidate was awarded a ‘C’ which was deemed adequate. At the interview stage the complainant was awarded a ‘B’ for Qualifications/ Experience which represented strong whereas the successful candidate was awarded a ‘A-’ which was deemed to be between strong and exceptional. From my examination of the CVs of the complainant and the successful candidate I am satisfied that the successful candidate was more highly qualified than the complainant. However the complainant had significantly greater experience than the successful candidate. In fact the complainant had held the position of Head of a Sociology Department in another University for in excess of a year and a half. One has to question the significant change in the grades awarded to these two applicants between the short listing stage and the interview stage of the selection process. At the hearing of this claim two of the Assessment Board members stated that the grades awarded at the short listing stage were independent of those awarded at the interview stage i.e. applicants at interview were on an equal footing. The other three Assessment Board members attempted to justify the lower grade the complainant achieved for Qualifications/Experience and their reasons were all different. This was a clear case of the members of the Assessment Board having to explain themselves but not really knowing how where qualifications/experience are an objective criterion. In my view it is difficult to justify the change in grades under the heading of qualifications/experience from ‘A’ to ‘B’ in relation to the complainant.
- In terms of Research Record and Administrative Experience the complainant was graded ‘A’ both at the short listing and interview stages of this competition. By comparison the successful candidate was ranked ‘C’ under both these criteria at the short listing stage and at interview stage was awarded a ranking of ‘A’ for Research Record and a ranking of ‘B’ for Administrative Experience. The successful candidate’s research record did not change between the short listing and the interview stages of this competitive process. It does not make sense, therefore, that the ranking to the successful candidate should change so dramatically between the two stages. Furthermore a book by the successful candidate was being considered for publication but had not been accepted for publication at the time of the interview. Hence at the time of interview the successful candidate had published no books. In relation to Administrative Experience the successful candidate’s ranking moved from ‘C’ to ‘B’. This change in ranking lacks comprehension given the issues that were considered under this criterion e.g. “had the candidate held senior posts of responsibility in the university and for how long?” One has to question if a candidate’s potential to fulfil those duties is sufficient to warrant an increase in ranking as happened with the successful candidate where the complainant had actual Administrative Experience. It is noteworthy that in the Summary Report which the Chairman of the Assessment Board drew up after the interviews it was recognised that the successful candidate had some administrative experience but not in a senior position. In these circumstances his Administrative Experience could hardly be described as strong (a ranking of B) as opposed to adequate (a ranking of C).
- During the course of this investigation I got the sense that the emphasis changed between the initial formulation of the job advertisement and the interview stage of the process with greater emphasis being placed on quality as opposed to quantity i.e. the quality of the qualifications in terms of degree types and grades achieved and the quality of the experience in terms of the nature and range of Universities where applicants studied and/or worked. I considered if this could be the explanation for the difference in ranking between the short listing and interview stages of the process. However I note that two persons involved initially in the ranking of the candidates for short listing purposes were also members of the Search Committee and had participated in a meeting of the Search Committee to agree the job advertisement and job description. If the emphasis was being placed on quality, as has been the contention of the respondent, it does not make sense in those circumstances that the successful candidate was awarded such low rankings at the short listing stage of the process.
- At the short listing of candidates the successful candidate was deemed adequate. It was at the intervention of the Professor from the ESRI that the successful candidate was placed on the short list for interview. This Assessment Board member argued against the short listing of one candidate and I note that he did so in one sentence. However in arguing for the successful candidate to be placed on the short list the Professor from the ESRI outlined his reasons in detail as set out in paragraph 6.4 above. He describes the successful candidate as “the outstanding Irish sociologist of his generation” and he states “I would consider that his track record to date suggests that in terms of sheer intellectual capacity he is actually the outstanding candidate”. In terms of his description of the successful candidate as the “outstanding Irish sociologist of his generation” the Professor from the ESRI stated at the hearing of this claim that the use of the word “Irish” was not related to the successful candidate’s nationality but was used for comparative purposes. The Professor from the ESRI stated that he would not have said that the successful candidate was the outstanding European sociologist of his generation as he would not be of this opinion. Having expressed the view that the successful candidate was “the outstanding candidate” I consider that it was inappropriate for the Professor from the ESRI to have participated on the Assessment Board where he held a biased opinion of one of the candidates and where he could influence other members of the Assessment Board.
- I note that the respondent did not retain any notes which may have been made by any of the Assessment Board members with the exception of the Chairman. Furthermore each of the Assessment Board members did not mark the individual candidates for the vacant position. In the past I, my colleagues and the Labour Court have all consistently referred to this practice as being disturbing. At this stage I do not consider that the respondent has any justification for its failure in this regard. Furthermore it was even more disturbing that, during the course of the hearing of this claim, it was considered that it was not necessary to have retained notes or carried out individual marking of candidates. It was considered that the information that was retained was sufficient and any separate notes by individual members of the Assessment Board would not have reaped any further benefits to me. One of the Assessment Board members stated that he had been a member of another Assessment Board in another University and that the same practice prevailed where notes were destroyed following the interviews. I am shocked and concerned at this attitude. Notes taken by members of an Assessment Board could prove very beneficial to me in an investigation of a claim of discrimination and it is for me to decide on the usefulness or otherwise of notes made at the time. This is a decision for the Equality Officer or the Labour Court. I would hope that this case would again draw employer’s attention to the importance of retaining notes made at interviews and the marking of candidates under objective criteria by each individual member of the Assessment Board.
- The complainant has pointed to discrepancies in the procedures adopted by the respondent in the selection process and he has contended that these discrepancies raise inferences of discrimination on the grounds of age and race. I am satisfied that the complainant has established a prima facie case of discrimination and consequently the burden of proof shifts to the respondent to prove on the balance of probabilities that it did not discriminate against the complainant on either of the named discriminatory grounds.
- Allegation of Age Discrimination
The complainant has alleged that he was discriminated against on the grounds of age when he was not appointed to the post of Professor of Sociology. He notes the comment about the successful candidate in the Summary Report which was produced by the Chairman of the Assessment Board after the interviews in which it is stated ‘his Research Record for a person of his years’. The respondent has denied the allegation of discrimination on the grounds of age. - At the date of interview the complainant was 50 years of age whereas the successful candidate was 34 years of age. The Assessment Board established a panel after the interview process and the complainant was placed third on this panel. The candidate who was placed second on the panel was aged 42 at the time of the interview. I note that six persons were interviewed for the position of Professor of Sociology. Three of these candidates were not deemed appointable to the position of Professor of Sociology in the respondent organisation. These candidates were aged 35, 52 and 55 years of age at the time of interview. If the respondent had sought to have a young person fill the position and was making the appointment on the basis of the candidates’ age then the candidate aged 35 would have been deemed appointable and the complainant would not have been so deemed. During the course of the recruitment process or in any information supplied as a result of this process there is no indication that age was an issue.
- I note from the information supplied by the respondent (see paragraph 4.10 above) that the appointment of the successful candidate at the age of 34 years to this position is not unique and that other persons in the respondent organisation were as young and younger than the successful candidate when they were appointed to the position of Professor. I am satisfied that there is no evidence to support the allegation that the failure to appoint the complainant to the post of Professor of Sociology was related to his age.
- Allegation of Race Discrimination
The complainant has also contended that he was discriminated against on the grounds of his race. In this regard the complainant notes that his name is not Irish and that, while his nationality was not stated on his application, it would have been known to the Assessment Board that he was not Irish. The complainant cites the reference to the successful candidate as being the “outstanding Irish sociologist of his generation” by the Professor from the ESRI as being a reference to nationality. It is the complainant’s submission that, at his interview, one of the Assessment Board members implied that he did not understand the Irish dimension in terms of research funding. Of the candidates appointable for the position the complainant notes that he was placed last, despite his qualifications and experience, and the candidates placed first and second were both Irish. The complainant refers to the Summary Report that was drafted by the Chairman of the Assessment Board following the interviews and notes that in terms of one candidate the reference was made that this candidate made ‘no attempt to adjust to the Irish/Maynooth scene’. In relation to another candidate the comment was made that ‘his suitability was weakened by his lack of centrality to modern Irish Sociology’. The comments on the complainant focussed on ‘the transferability of his experience of Latin America’. In commenting on the successful candidate it is stated ‘his Research Record for a person of his years was outstanding. It was also of direct and immediate relevance to modern Celtic Tiger Ireland’. The complainant alleges that subsequent to the competition he spoke with the Chairman of the Assessment Board who stated that the decision came down in the end to ‘who or whose research would best fit in with the Department’. According to the complainant no recognition was given to his research into Irish Sociological issues or the fact that he had lectured in the University of Ulster in Northern Ireland. The respondent denied all the allegations made by the complainant in relation to race. - It is recognised that direct evidence of discrimination on the grounds of race is very often elusive . Rather a decision must be made if an inference of discrimination on the grounds of race can be determined on the facts. Having regard to the facts of this case I am satisfied that the complainant has successfully raised an inference of discrimination on the grounds of race thus shifting the burden of proof onto the respondent and I find that the respondent has failed to adequately or satisfactorily discharge that burden. In the Summary Report there was significant reference to Ireland e.g. Irish scene/modern Irish Sociology/modern Celtic Tiger Ireland. The complainant has alleged that, at his interview, it was implied that he did not understand the Irish dimension. In the absence of any notes I am not satisfied that the respondent is in a position to clearly dispute this allegation. While I accept that the successful candidate had very good credentials I am not satisfied that they outweighed all the experience and research record of the complainant.
- Other Issues
In relation to the presentation the complainant stated that he was informed that senior members of the academic community would be in attendance. However most of the persons present were members of the Sociology Department. At the end of the presentations the persons present from the Sociology Department discussed the candidates and ranked them according to nominations which they passed to the Chairman of the Assessment Board. The Chairman of the Assessment Board received this communication before the Assessment Board had made a decision on who to appoint and, according to the Chairman of the Assessment Board, he did not disclose the details of this communication until after the decision had been made on who was to be offered the position. I do not accept that this was a major issue in this claim or that it, in any way, supports a claim of discrimination on the grounds of age or race. I note that all candidates were invited to give a presentation and that each of the candidates gave their presentation to the same audience. While the fact that the Chairman of the Assessment Board was aware of the candidate preference as outlined by members of the Sociology Department may not have been appropriate I do not consider that this information influenced the outcome of the Assessment Board’s deliberations. I am further satisfied that there is no evidence that this ranking of candidates by the members of the Sociology Department was related to age or race. - The complainant contended that the two external members of the Assessment Board were not Professors of Sociology. It is a matter for the respondent to decide on the persons to be appointed as members of Assessment Boards. I do not consider that this issue is relevant to this claim of discrimination on the grounds of age and race.
- The complainant alleged that the former holder of the post of Professor of Sociology told him that ‘he did not mind who succeeded him so long as it was not a foreigner’. I have no evidence to confirm or otherwise that this was said. However I note that the former holder of the post of Professor of Sociology had retired from the respondent organisation and had no role in the selection process. I, therefore, do not consider that any inference can be drawn from this alleged comment.
- There were a number of issues raised in this claim regarding confidentiality. The complainant forwarded a copy of the successful candidate’s CV, which he had obtained from the internet, to academic staff in other Universities around the world and had sought their comparison of the complainant’s and the successful candidate’s CV. These comparisons were copied to me in support of the complainant’s case. I did not consider these comparisons to be useful to me in my investigation and I returned them to the complainant. In relation to other issues of confidentiality I brought the appropriate provisions of the Employment Equality Act, 1998 to the attention of the parties.
- DECISION
- In view of the foregoing I find that the respondent did not discriminate against the complainant on the grounds of age in terms of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
- I further find that the National University of Ireland Maynooth did discriminate against Dr. Ronaldo Munck on the grounds of race in terms of Section 6 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act.
- In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the respondent –
- to pay the complainant the sum of €10,000 by way of compensation for the breach of his rights to equal treatment under the Employment Equality Act, 19998 and for the stress suffered as a result of the discrimination;
- to revise appointment procedures to ensure that all notes made at interview are retained in future and candidates are marked by each individual Assessment Board member on the basis of objective criteria agreed before the process commences.