HORGAN
(REPRESENTED BY MR. WILLIAM FAWSITT BL
INSTRUCTED BY CARVILL & CO., SOLICITORS)
AND
DUBLIN CITY UNIVERSITY
(REPRESENTED BY TOM MALLON BL
INSTRUCTED BY ARTHUR COX, SOLICITORS)
1. DISPUTE
This dispute involves a claim by Ms. Horgan that she was discriminated against by Dublin City University on grounds of gender, in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when she was not appointed to the position of Associate Professor following a selection process which commenced in March, 2001 and concluded in November, 2002 when she was informed her application was unsuccessful.
2. BACKGROUND
2.1 The complainant is employed by the respondent as a Senior Lecturer. In April, 2001 she applied for a post as Associate Professor with the respondent following a call for applications for posts at that level by the University. The selection process went on for some time and the complainant was interviewed on 11 November, 2002. She was informed that she was unsuccessful the following day. Four male candidates who applied at the same time as the complainant were successful in their applications. She contends that she is better qualified for appointment to the position of Associate Professor than the four male candidates and alleges that she was discriminated against by the respondent at all stages of the selection process on grounds of gender. The respondent rejects the allegations that it treated the complainant less favourably on grounds of gender contrary to the Act.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Equality Tribunal on 9 May, 2003. In accordance with her powers under the Acts the Director delegated the complaint to Ms. Mary Rogerson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Submissions were received from both parties. However, before Ms. Rogerson commenced her investigation she surrendered the file to the Director requesting it be re-assigned as she was to be absent from the Tribunal for several months. The Director re-assigned the case to Mr. Vivian Jackson, Equality Officer on 26 September, 2005. A number of issues arose at the final hearing which required further clarification and gave rise to correspondence between the Tribunal and the parties until end February, 2006.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant is employed as a Senior Lecturer with the respondent. In March, 2001 the respondent issued a call seeking applications for promotion to the position of Associate Professor. The complainant submitted her application and Curriculum Vitae on 17 April, 2001. She states that nine applications were received - seven males and two female and five of these - four males and the complainant were called for interview. The complainant contends that she was treated differently to the male applicants at all stages of the selection process, that different criteria were applied to her and that the male candidates, all of whom were successful in their applications, were afforded opportunities denied to her. She submits that this constitutes unlawful discrimination of her under the Employment Equality Act, 1998.
3.2 The complainant states that the respondent document "Promotion to Associate Professor - Policy and Procedures" requires candidates to furnish the respondent with (i) a Curriculum Vitae, (ii) a personal statement setting out, inter alia, academic activity, a list of publications for assessment and consideration and the reasons/beliefs why the applicant considers himself/herself a suitable candidate for promotion and (iii) the names of three eminent external referees of professorial or equivalent status. The complainant states that she holds a Bachelor of Arts (1st Class Honours) and a Masters of Arts (1st Class Honours) both from UCC, a Master of Science (Statistics/Computing) from London School of Economics and a PhD (Monetary Unit Sampling) from London City University. In addition she has thirty years experience of lecturing in academic environments in Ireland and abroad, the last twenty of which were with the respondent. She has also published extensively in refereed and non-refereed journals, other publications as well as delivering papers/seminars at international conferences. Full details of the above were furnished in her application for the post. In addition, the complainant furnished the names of three referees whom she considered appropriate and were experts in her main research area, Sampling.
3.3 The complainant states that the respondent's Academic Promotions Committee (APC), the body within the respondent which decides on those applications which should be put forward to the external referees, initially had no objections to the referees submitted by her. However one of her referees had, unknown to the complainant, predeceased her application and she submitted an alternative, Dr. B on 25 August, 2001. She states that two days later the respondent rejected one of her original referees, Professor W, because she had collaborated with him previously in respect of a publication and his expertise was not in the same field as the complainant. The complainant submitted Dr. Y as an alternative. She states that on 19 November, 2001 the respondent rejected Dr. B as a suitable referee because of a comment in his written reference that he "was not the most suitable person to assess the international standing of many of her papers". The complainant adds that in another part of the reference Dr. B comments, having regard to his own field of expertise and having read the eight papers submitted by the complainant, that they "compare very well with articles produced by the best minds in academic finance" and that the "range and breadth of her work shows she has made a significant contribution to her areas of specialisation in statistics". The complainant states that Dr. B had been proposed and accepted by the respondent as a suitable referee in respect of a male colleague in a previous round of promotions (January, 2001) notwithstanding a similar disclaimer to that included in the complainant's reference.
3.4 On 11 December, 2001 the respondent rejected Dr Y as a suitable referee because the complainant had collaborated with him. A further referee Dr. E was also rejected because it was not evident from the material provided that he was of professorial or equivalent status - although he was subsequently accepted by the respondent. Another nominee, from NUI Galway, was rejected by the respondent on 1 March, 2002 because there was a "need to have an international dimension to your reference and this is still outstanding". The complainant's application was eventually assessed by the APC and on 10 July, 2002 she was informed it had decided to put her application for interview. The complainant states that in all she submitted seven referees to the respondent before three were accepted. She contends that the male applicants were not required to submit that many referees and that this treatment of her constitutes less favourable treatment of her contrary to the Act.
3.5 The complainant states that the respondent's "Promotion to Associate Professor - Policy and Procedures" provides that the Head of School will be requested by the Director of Personnel to provide a reference in respect of any applicant in his/her area and also to nominate two or three independent external assessors, who ideally should not be personally acquainted with the candidate, who will consider the case and offer advice to the University. The document also states that the Interview Panel will consist of the respondent's President, two Professors from the APC and the external assessors. In order to ensure gender representation on the Panel the APC will co-opt internally or externally as appropriate. The complainant states that the two Professors from the APC, one of whom was her Head of School at the time (Professor S), were previously involved in the referee issue set out above and she contends that they were influenced by what went on in that process in the course of the interview and selection deliberations. In particular she contends that previous behaviour of Professor S toward her (in 2000) in respect of allocating work to her and failing to publicly congratulate her on her appointment to Senior Lecturer when he had done so for a male colleague, demonstrate this bias. She adds that because of this she requested that the previous Head of School furnish her reference to Personnel.
3.6 The complainant contends that her Interview Panel differed in a number of respects to those of her colleagues. Firstly, her Panel was the only one to comprise six people, seven if you include the Director of Personnel, whom the complainant argues was not entitled to sit on the Panel. In addition, only one of the six Panel members was female (representing 17%) - the complainant submits this does not represent gender balance - and only one of the other Panels had a lower female representation. It was the only Panel to have three external assessors (two of whom were selected by Professor S) and the complainant contends that none of them were experts in her primary area of research. She contrasts this with the external assessors on the other Panels and contends that in three of them both assessors were expert in the candidates' research area and the other one had one assessor with expertise in the candidate's area of research. She draws particular attention to the external assessors for Candidate A - who were also suggested by Professor S as he is that candidate's Head of School also. She submits that this demonstrates bias against her.
3.7 The complainant argues that she was further discriminated against by the respondent in the course of the Interview Panel's deliberations. She states that she met with the respondent's President on 3 December, 2002 to discuss in further detail the reasons why she was unsuccessful in her application, which had been set out in his letter of 14 November, 2002. One of the reasons set out in this letter for her failure to be appointed was "that her research output should ideally have been higher". The complainant states that at the time of interview she had published in ten refereed journals, half of which dated from 1997 onward, the most recent in 2002. She had published in EU publications and the Journal of Business and Economic Statistics of the USA Statistics Association - which is a world recognised publication. In contrast the complainant contends that Candidate A had published in only six refereed journals - five of which appeared in one journal in 1994 and the other in 2001. The complainant also contends that Professor S belittled aspects of the evidence she submitted with her application in respect of her teaching ability by informing the Panel that he had received a similar letter, at which point she submits the evidence was not taken seriously. On the reason given that there was a failure on her part to attract external research funding, the complainant argues that this demonstrates a lack of understanding on the Panel's part on the nature of her area of expertise - which she contends is more difficult to attract funding in than the areas of expertise of the male candidates.
3.8 Finally, the complainant states that whilst she has little experience of supervising post graduate students for PhD, the fault for this lies with the respondent as it has failed to allow her take them on. She adds that in 2001, the year she applied for promotion to Associate Professor, she submitted what she considered to be the two best applications from graduates wishing to do post-graduate research with her for funding to the respondent's Research Studentship Committee. The complainant states that this Committee, of which Professor S is a member, awarded six studentships that year, all to nominees of male colleagues, two of whom had two students each who were successful, whilst the complainant's nominees received no contribution towards their post-graduate studies. The complainant adds that Candidate A had, at the time of interview, not supervised any PhD student to completion.
3.9 In summary, the complainant states that (i) she has superior academic qualifications to the successful male candidates, (ii) she has considerably longer teaching experience than them, (iii) she had published significantly more than Candidate A, who was successful and (iv) she was treated less favourably than the male candidates in respect of all aspects of the selection process, from the approval of referees to deliberations by the Interview Panel post interview. Consequently, she argues that she was discriminated against on grounds of gender contrary to the Employment Equality Act, 1998.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertion that it discriminated against her on grounds of gender. In the first instance it submits that progression to the position of Associate Professor does not involve a competitive process of candidate versus candidate. It adds that appointment to that position is dependent solely on the candidate attaining nationally and internationally recognised excellence. It states that had the complainant been successful in her application she would have continued to teach in her chosen field and the fact that another candidate was appointed as Associate Professor did not impact adversely on the complainant. It submits that as candidates were not competing for the same post the Act does not apply.
4.2 The respondent argues that it is open to it to decide on the suitability of referees submitted by candidates. It states the instructions issued to candidates in respect of referees provides that "your referees should not be closely associated with you (e.g. PhD supervisor, Research Collaborator etc.". It adds that acquaintances in DCU were also considered unsuitable referees by the APC. Consequently, a number of the referees furnished by the complainant were unsuitable because they fell into one of the above. In addition, it was not originally clear to the APC that Dr. E was of professorial or equivalent status and when this was confirmed he was accepted. As regards the unsuitability of the academic from NUI Galway, the respondent states there was no international dimension to the respondent's referees, which was expected and was present in the other candidates' nominees, and this was the reason for rejecting him.
4.3 The respondent accepts that Dr. B provided a reference for a male colleague of the complainant which contained a similar disclaimer to that furnished by him in respect of the complainant and that this reference was accepted as suitable by the APC. It adds however that this was in respect of a previous round of progression to Associate Professor which was held in April, 2001. The respondent had concerns about this and wrote to the external assessors on that Interview Panel informing them of the situation and asking them to take particular account of those issues in the course of the interview. Following on from this the respondent tightened up the guidelines for nomination of referees and these guidelines applied to all five candidates (including the complainant) seeking progression to Associate Professor, regardless of their gender. In this regard the respondent states the APC decided that referees nominated by one of the male candidates were unsuitable as they had been associated with the candidate previously and requested him to provide alternatives. The respondent submits that the requirement to submit additional referees was therefore unconnected with the gender of the candidates rather it was because they could not conform to the guidelines.
4.4 The respondent states that it has been standard practice for the Director of Personnel to sit on Interview Panels and this is not unreasonable. It accepts the complainant's submission as regards the composition of the five Interview Panels and states that the combination, background and experience of the complainant's Panel was perfectly adequate to assess the merits of her application. Candidates were assessed across three pre-determined criteria as follows: (i) Excellence in Research and Scholarship; (ii) Excellence in Teaching and (iii) High Professional Standing. The respondent's "Promotion to Associate Professor - Policy and Procedures" document elaborates on what is required under each of these headings. The complainant did not demonstrate to the Panel that she possessed the necessary attributes for progression and the reasons for same were set out by the President in his letter of 14 November, 2002. Whilst no individual written notes of the interview exist the respondent submitted a hand written note of the President (who sat on the complainant's Interview Panel) which sets out the impressions and overall decision of members of the Panel in respect of the complainant along with a copy of the Panel's recommendation that the complainant should not progress to Associate Professor. The respondent submits that these documents disclose a considered analysis of the complainant rather than indications of discriminatory practice.
4.5 The respondent states that it makes every effort to match the external assessors to the candidate's area of expertise although this proves difficult on occasion. In the complainant's case two of the assessors were suggested by Professor S and whilst they were not "spot on" with the complainant's area of expertise, he believes they were close enough. The respondent adds that it is also difficult to source suitably qualified female academics to sit on Interview Panels. Notwithstanding this, the third external assessor (who was female) was suggested by the Chair of the APC (Professor P) and whilst she was not an expert in the complainant's field she is, in Professor P's opinion, more than academically qualified to assess the complainant for promotion. It states that there is no gender requirement defined for membership of Interview Panels and notes that in the complainant's case two of the seven members were female.
4.6 The respondent (Professor S) denies that he exercised any bias toward the complainant. He rejects the assertion that he tried to assign an unduly heavy workload to her in 2000, stating that there was a general issue with teaching allocations for that year which as Head of School he was required to handle. He adds that shortly before this interaction with the complainant he was a member of the Interview Panel that had promoted her to Senior Lecturer and submits that this demonstrates he is not biased against her. He adds that he had not belittled the complainant's letter submitted in support of her teaching excellence and he is not convinced it adequately addressed that issue for the Panel. He goes on to state that the questionnaires submitted by the complainant in support of her assertion of teaching excellence were framed in such a way as to elicit positive response and they do not conform to the formal process of evaluation operated by the University. Finally, he states that the selection of applicants in respect of post-graduate funding is carried out by a group of individuals, of whom he is one. The process in 2001 yielded 12 applications. Four of the applicants had a 1st class honours degree and one also had a Masters Degree. These were selected for funding. Of the remaining applicants four had a 2.1 and four had a 2.2. These applicants were evaluated together and two of them, who were EU nationals, were selected. He argues that the process was carried out without any reference to, or influenced by, the gender of the students or the academics involved.
4.7 In summary the respondent denies that it discriminated against the complainant on grounds of gender. It states that the complainant failed initially to comply with the requirements as regards suitable referees and whilst she was put forward for interview, she failed to satisfy the Interview Panel that she possessed the necessary attributes across the three pre-determined criteria.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision by me is whether or not Dublin City University discriminated against Ms. Horgan on grounds of gender in terms of section 6 of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it failed to appoint her to the position of Associate Professor following the selection process which concluded with the interview in November, 2002. In reaching my decision I have taken into account all of the submission, oral and written, made to me by the parties.
5.2 The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (1) provides that a complainant must, in the first instance, establish facts from which it may be presumed that discrimination has occurred. It is only when these facts have been established and the Equality Officer considers them to be of sufficient significance, that the burden of proof shifts to the respondent to prove the contrary. However, before examining the complainant's allegations that she was treated less favourably because of her gender, I must address the respondent's argument that the Employment Equality Act, 1998 does not apply in the instant case because progression to the position of Associate Professor does not involve a competitive process of candidate versus candidate and that the complainant was not adversely affected by her male colleagues' appointments. I do not accept the respondent's arguments on this point. Firstly, the complainant was assessed over criteria determined by the respondent and was required to demonstrate that she had the necessary capability and attributes under those headings to warrant progression to Associate Professor. She would have been required to satisfy the members of the Panel on these issues had she been competing against the other candidates for a single post, the fact that she was not in that situation is irrelevant. Secondly, I note that there is a significant difference in salary between Senior Lecturer and Associate Professor in addition to the prestige which the post contains. I also note that Associate Professors are entitled to apply for progression to Personal Chairs after three years at that level, whilst Senior Lecturers are not. The complainant was therefore adversely affected by the process. In light of the foregoing I am satisfied that the Act applies to the instant case and I can investigate the complainant's allegations.
5.3 I will now address the complainant's allegations of discrimination. In the first instance she contends that she was treated less favourably on grounds of gender in respect of the process of nominating referees in that a number of her referees were deemed unacceptable by the APC. I note the reasons furnished by the respondent for rejecting these nominees and I am satisfied that these reasons do not constitute discrimination of the complainant in all bar one instance. It is accepted by the respondent that it rejected Dr. B as a referee for the complainant and that he was accepted previously as suitable by the APC in respect of a male candidate for progression to Associate Professor. It adds that it alerted the external assessors of this and exhorted them to have regard to that when interviewing the candidate and that it subsequently tightened up guidelines on this issue. In addition, I note that Professor P, in a letter to the complainant dated 25 March, 2002, stated that Dr. B was unacceptable to the APC because he stated in his reference that he "was not the most suitable person to assess the international standing of many of her papers....Each referee is requested to assess an application in its entirety and where this is not possible, it seeks an alternative.". I am satisfied that Dr. B made a similar disclaimer in the reference furnished for the complainant's male colleague dated 24 January, 2001, nine months before it rejected him as the complainant's referee. I am also satisfied that the material submitted by the respondent on this issue does not state that a referee is required to be able to assess an application in its entirety - in this regard it is noteworthy that that the complainant's external assessor suggested by Professor P was not an expert in the complainant's field but she was in his opinion, more than academically qualified to assess the complainant.
5.4 I am further satisfied, on the basis of the evidence submitted by the respondent, that it did not tighten up its guidelines on the nomination of referees to the extent that it could legitimately refuse to accept Dr. B as a referee for the complainant on the basis of his disclaimer in his letter of 1 September, 2001. In Gillespie and Others v Northern Health and Social Services Board (2) the European Court of Justice held "it was well settled that discrimination involves the application of different rules to comparable situations or the application of the same rule to different situations". I find that the respondent applied different rules to the complainant in respect of her nomination of Dr. B as a referee than it did nine months previously to a male colleague and it follows that she has established a prima facie case of discrimination on this element of her complaint. I am not satisfied that the respondent has rebutted this inference and I find that it discriminated against the complainant on grounds of gender contrary to the Act.
5.5 The complainant contends that she was treated less favourably in the course of the interview than the four males who progressed to Associate Professor. Her first argument relates to the composition of her Interview Panel, in particular the external assessors, none of whom were experts in her field. The second of her arguments on this issue relates to the bias which Professor S had for her as a result of previous incidents between them. Having evaluated all of the evidence submitted by the parties on both of these points, I am satisfied they do not constitute unlawful discrimination of the complainant. I would recommend however that the respondent codify its practice of having the Director of Personnel sit on, and indeed play a full and active part in, selection of candidates at interview. Similarly, I find, on balance, that the complainant has failed to establish a prima facie case of discrimination in relation to the selection of students for post-graduate funding.
5.6 The respondent's "Promotion to Associate Professor - Policy and Procedures" document states that candidates are assessed across three pre-determined criteria as follows: (i) Excellence in Research and Scholarship; (ii) Excellence in Teaching and (iii) High Professional Standing. The document then goes on to elaborate on what is required under each of these headings. The respondent's President wrote to the complainant on 14 November, 2002 setting out her strengths and weaknesses as found by the Interview Panel, across these criteria. Under the criterion "Excellence in Research and Scholarship" he states that the Panel felt her "volume of research output should ideally have been higher". Under "High Professional Standing" he states that her "weakness under this heading lay in your poor performance in attracting research funding and perhaps more significantly, in not supervising research post-graduate students". I am satisfied that the complainant had published in ten refereed journals, half of which dated from 1997 onward, the most recent just before her interview and that she had published in EU publications and the Journal of Business and Economic Statistics of the USA Statistics Association - which is a world recognised publication. I note that Candidate A, who was successful in his application, had published in only six refereed journals - five of which appeared in one journal in 1994 and the other in 2001. In addition, he had never supervised a post-graduate student to completion. In Wallace and the South Eastern Health Board (3) the Northern Ireland Court of Appeal held "the fact that the successful candidate was a man and the unsuccessful, but better candidate was a woman, is itself prima facie evidence of discrimination on grounds of sex as to shift the evidential burden to the employer". This approach has been adopted on many occasions by this Tribunal (4). In light of the foregoing I am satisfied that the complainant was better qualified than Candidate A in respect of the two criteria indicated, although I accept that she was not as successful as her colleagues in attracting research funding. I find therefore that she has established a prima facie case of discrimination in respect of this element of her complaint and the burden of proof shifts to the respondent.
5.7 The respondent furnished a hand written note made by the respondent's President which is his contemporaneous record of the comments, impressions and overall decision of members of the Interview Panel in respect of the complainant, along with a copy of the Panel's recommendation that the complainant should not progress to Associate Professor. In the course of the hearing the Director of Personnel and Professor S gave evidence as to the accuracy of the comments attributed to them in this document. I am satisfied that the document is reflected in the President's letter of 14 November, 2002 but it does not, in my view, furnish an explanation as to how Candidate A, whose shortcomings versus the complainant are set out above, was considered suitable by a Panel containing the President and Professor S and who was assessed across the same criteria, when the complainant was not. No other evidence was presented by the respondent to support this decision. I find therefore that the respondent has failed to discharge the burden required of it and that it discriminated against the complainant on grounds of gender contrary to the Employment Equality Act, 1998.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I find that Dublin City University discriminated against Ms. Horgan on grounds of gender in terms of section 6(2) of the Employment Equality Act, 1998 and contrary to section 8 of that Act, when it failed to appoint her to the position of Associate Professor following the selection process for progression to that post which commenced in April, 2001 and concluded in November, 2002.
6.2 In assessing the redress which might be ordered in this case I note that Equality Officers have tended to put complainants in the position they would have been in had the unlawful treatment not occurred. I therefore order, in accordance with section 82 of the Employment Equality Acts 1998-2004:
(i) that the complainant is appointed to the position of Associate Professor, with effect from 14 November, 2002 and that she is paid the full necessary adjustment in salary and any other benefits attached to the post from that date;
(ii) that the respondent pay the complainant €10,000 by way of compensation for the distress suffered by her as a result of the discrimination. This does not contain any element in respect of remuneration on the part of the complainant;
(iii) that the respondent set out clearly, within six months of the date of this decision, in all documentation concerning appointment, promotion or progression to all posts within the organisation, a minimum requirement in respect of the gender composition of Interview Panels;
(iv) that it introduces immediately, if it has not already done so, a policy requiring all members of Interview Panels to make notes of interviews. These notes should be retained by the respondent for a minimum of twelve months following the competition to which they pertain.
____________________________
Vivian Jackson
Equality Officer
23 May, 2006
notes
(1). SI 337 of 2001
(2). Case C-342/93 paragraph 16
(3). [1980] IRLR 193
(4). Fosberry v County Roscommon VEC DEC-2004-036