FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MARY IMMACULATE COLLEGE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SISTER MARY LOYE (REPRESENTED BY DANIEL SPRING & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Act, 1998. Dec-E2006-06.
BACKGROUND:
2. The complainant appealed the Equality Officer's decision to the Labour Court on the 15th January, 2007, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 2nd November, 2007. The following is the Court's determination:
DETERMINATION:
The complainant, who is a member of a Religious Order, was employed on successive fixed-term contracts as an Assistant Lecturer with the respondent from 1995 until 2002, when she received a 5 year contract to the date of her retirement in 2007.
In 2001, a competition was held, pursuant to an industrial relations settlement between the respondent, the University of Limerick and I.F.U.T. (the complainant’s Trade Union) whereby a number of academics on long-term “back to back” fixed term contracts were given the opportunity to attain permanency in their respective positions, subject to success in a confined assessment process. The candidates competed against criteria tailored to their own Areas/Departments. They were not competing against one another.
Seven academics applied for consideration, including the complainant. Interviews took place and six of the seven applicants were successful. The complainant was not successful.
On 21st December 2001, the complainant referred a case alleging discrimination on the grounds of age, gender and religious beliefs to the Director of the Equality Tribunal who delegated the case to an Equality Officer on 26th March 2002. The investigation was suspended in April 2002 to allow the complainant’s Trade Union to take the matter up with the respondent.
This did not succeed and the case was re-opened late in 2004. Subsequent to this, the case was reassigned to a different Equality Officer in May, 2005. During the hearing at which the claims of discrimination on the grounds of gender and religious beliefs were withdrawn. In a Decision dated 5th December, 2006, the Equality Officer found that the respondent did not discriminate on the age ground in terms of Section 6(2)(f) of the Employment Equality Act, 1998, and contrary to the provisions of Section 8 of that Act, in the appointment of part-time lecturers to full time positions.
On 15th January, 2007, the complainant appealed the Equality Officer’s Decision to the Labour Court. A Labour Court hearing took place on 2nd November, 2007.
Complainant’s Arguments:
1. The interview matrices for other candidates were taken, and largely adopted from, a template previously created for this type of interview. In contrast hers was customised to produce a more onerous matrix, encompassing more difficult questions, thus “raising the bar” for the claimant.
2. From sub-headings on the claimant’s matrix, it appears likely that it was the same matrix used for interviews two years previously (1999) for the position of Head of School, rather than an interview to simply declare someone permanent in a position which she held for some years beforehand (and afterwards).
3. She was the oldest applicant by 11 years and was 27 years older than the average age of the other applicants for permanency. She was the only applicant out of seven across 5 Departments not to succeed.
4. There was a lack of transparency in the process in that the respondent failed to provide the claimant or the Equality Officer with information on comparative matrices and marking of the applicants, of their respective qualifications or of their research publications, despite these being sought. This information being in the possession of the respondent, not to furnish it is in itself sufficient to shift the burden of proof onto the respondent, following the principles laid down by the Labour Court inNtoko v Citibank[2004] ELR 116.
5. Although the complainant was not deemed suitable for appointment to a permanent position, the respondent continued to employ her in a temporary capacity in exactly the same position for a further 6 years until the date of her retirement in 2007.
6. Having been employed in a temporary capacity since 1995, the complainant had the longest service of all the applicants for permanency.
7. The complainant's qualifications were similar to or greater than many of the other applicants. She was in the process of undertaking her PhD but was inhibited from completing it by the failure of the respondent to grant her study leave (not being permanent). At the time of the permanency interview, several of the other applicants either had no PhD or were also studying for one.
8. The Interview Board was constituted in the complainant's case in a manner which disadvantaged her more than other applicants in that.
(i) No direct representative of the University of Limerick was on the Board (University of Limerick is the “parent body” and all other candidates had a University of Limerick representative on their Boards).
(ii) Her Board was much narrower in experience than all of the other Interview Boards.
(iii) A similarly constituted Board had previously refused to appoint her to a position in 1999 in an open competition.
9 Some candidates were given up to six weeks’ notice of interview, but the claimant only got 44 hours’ notice of hers. Her interview was then delayed for almost an hour, thus adding to her anxiety.
10. The normal and acceptable interview guidelines were not applied in her case – she was not “put at ease” but was quickly handed over to the first questioner. In the course of her interview she was not dealt with in the prescribed manner i.e. a “relaxed discussion”, but was subjected to: -- Inquisition/ Interrogation type questioning.
- Closed Questions.
- Multiple questions in rapid succession before she had a chance to answer.
- Interruptions
11. The marks given to her were in no way justifiable. All other candidates for whom the claimant has been able to obtain the scoring matrices got between 79% and 98% of the marks available. She got 25%. There were significant variations in her marks, e.g. between 0/20 and 7/20 or between 2/20 and 9/20, between interviewers. Given her experience and that fact that she was undertaking a PhD, there can be no justification for scores of 0/20 and 2/20 under the heading of research, especially as others got 18 or 19 out of 20. In particular, she pointed out that her teaching had been praised and she had even been nominated for an excellence award in teaching.
12. Following intervention by her Trade Union and a hearing at the Labour Court, the respondent offered in 2004 to re-run the interview with a differently constituted Board but did not do so until near the date of her impending retirement, at which stage they told her that there would be no point.
13. Other (named) older academics in Mary Immaculate College were “eased” out” because they, like her, were from a different era and ethos and their faces did not fit under a new, younger Head of Department.
14. In not making the claimant permanent the respondent denied her increments and the chance to proceed to Full Lecturer status. She contends that, because of her age, different rules were applied to similar situations, thus shifting the burden of proof to the respondent, which has failed to discharge that burden.
Respondent’s Arguments:
1. There was no guarantee of success in the competition for permanency. This had clearly been communicated to applicants and to their Trade Union in advance.
2. All applicants were expected to have a postgraduate degree in their relevant subject “normally at doctorate level”. Several applicants did have a PhD, most completed it soon thereafter and the complaint is still completing hers, 6 years later. Other candidates had supervised MA programmes regularly while the complainant had only supervised one or two. Others had been widely published, the complainant had not (only one publication in 2005).
3. Her Interview Board was properly constituted in accordance with the Instrument of Government of the College. The Co-ordinating Head of the Arts Deptpartments chaired this and most of the other Boards (except the one in the Irish Department, owing to a lack of fluency). 5 criteria were used to assess the performance of the complainant. One interviewer was appointed to ask questions in each area. All were well qualified. The matrix was adapted (as were the others) from a matrix produced by the co-ordinating Head of the Arts Deptartments (Dr Hayes).
4. An overall mark of 45% had to be obtained to qualify. The complainant’s overall mark was 25%, well short of the minimum requirement. The complainant failed to achieve the minimum qualifying score (9/20) in any of the 5 categories from any of the 5 Board members except in one case where she scored 9/20. In 24 of the 25 cases she failed to achieve 9/20. She quite simply did a poor interview, and failed to meet adequate standards under any of the criteria. She was particularly weak on research, qualifications and interpersonal skills.
5. The complainant has failed to substantiate her allegations of discrimination on the grounds of age. The fact that she was the oldest candidate and also the unsuccessful one is not evidence of age discrimination. There is no indication that age was a factor in the awarding of marks or in the conduct of the interview.
6. An Interview re-run was offered in 2002 but the complainant’s Trade Union sought a total change of Interview Board members. The College offered to change 3 of the 5 members, a stance backed by the Labour Court in 2004 (LCR17842). The Trade Union never sought to raise the matter again and the complainant has since retired, making this pointless.
7. The criteria for appointability which were applied to the complainant in this competition have consistently been applied to all candidates deemed appointable to posts in Theology and Religious Studies at Mary Immaculate College.
8. The complainant has produced no evidence to support her allegations. If age were a factor, why would the respondent have kept her on until retirement age as an Assistant Lecturer? There is no evidence of age discrimination.The Evidence:
The Complainantgave evidence that she had taught Religious Studies on successive fixed-term contacts since 1995. She also taught Biblical Studies at postgraduate level. She was a qualified teacher with an MA in Philosophy and a Licence in Sacred Theology from a Jesuit College in Berkeley, California.
At the time of the interview, she was working towards a PhD at the Milltown Institute. Having unsuccessfully applied for the Headship of the School, in 1999, she was hoping to finish her PhD in 2000. However, her research took her deeper into her subject and where she requested time off to study, which was not granted as she was not a permanent staff member.
In 1999/2000, the Department of Religious Studies became the Department of Theology & Religious Studies. It was the complainant’s view that about this time, the atmosphere and the ethos of the Department changed fundamentally with the arrival of a new younger Head of Department and she felt that she and other named “older” academics were seen as “yesterday’s people” and “over the hill”. She had gone for previous interviews in 1998 and 1999 and, while not successful on either occasion, was satisfied with the conduct and tone of each interview.
She testified that her permanency interview had a different “sharper” feel to it. From the start, Dr. Hayes, when he had introduced her to the board said “You do know that this is about appointabilty?”. Instead of being set at her ease, she was handed straight over Dr. Conway (Head of School) who dealt with her in a sharp and negative way, and interrupted her answers. She also testified that Dr. Conway made negative comments about her C.V.
All of the other members questioned her then Dr. Conway again. She was asked one long-winded question asking about her “vision, if you have any” which she found particularly upsetting.”
She was particularly upset by Dr. Conway’s attitude as she had given him her full support since 1999, on his appointment.
She was shocked and very upset when she heard she was unsuccessful, and that others had succeeded. Those candidates to whom she talked to all seemed to have a much less hostile interview experience than she did.
She had to attend a Doctor (details supplied) for a number of years from July 2001 regarding stress and anxiety arising from this experience. The whole process had a hugely negative professional and emotional impact on her.
She had always thought she was well regarded. She had many letters of commendation and was at one point nominated for an award in teaching excellence in University Limerick. This made her very low marking even harder to accept.
Incross-examination, the complainant insisted that she felt that she was not given a permanent appointment because she was thought to be too old. The whole process was aggressive and fast, aimed at a younger person.
She felt that the negative rather the positive was being emphasised all the way through the interview.
She agreed that she had had 2 weeks to send in her C.V. but insisted that the notice she got (44 hours) of interview was unreasonably short.
She agreed that her PhD thesis had still not been published but said she was now working to finish her thesis in retirement, in Salamanca, Spain. She never had enough time for research when she was teaching.
She felt the marks she got were indicative of age bias against her by all the Board members.
She also insisted that the delay of nearly an hour and the absence on the Board of any direct University of Limerick representative added to her stress.
She was a more measured older person and felt the interview tone should have been sympathetic to that. Her previous interviews were more evenly and sedately paced.
Mr Ruadhra� Walsh, Head of Human Resources, gave evidence that the other two “older academics” had left, in the case of one, through early retirement caused by ill-health (but she came back and taught part-time) and the other, who was the college Chaplin was moved by the Bishop of Limerick. He was made a Parish Priest elsewhere and did some part-time lecturing, but declined other offered part-time work and did some work in Oxford instead.
Dr. J Hayes, Coordinating Head of Arts Departments (and chair of this and several of the other permanency interview boards) gave evidence regarding the complainant’s interview.
He was insistent that the question of the complainant’s age never arose. He agreed that he had drawn up the original interview matrix, which was customised by the Heads of various Departments as required. He felt that the sub-categories in the complainant’s matrix were fair and no more onerous than any other matrix.
He felt that the process was open and transparent but that the complainant failed to reach the accepted and agreed standard.
The matrix, customised, was placed before the interview board on the morning of the interview.
He could not explain why four of the other matrices used were identical to each other, even when “customised” while this one was quite different in subjects, sub-categories and scoring system.
There was no University of Limerick representative on this board because there was no Theology Department in the University of Limerick.
He refuted that the tone of the interview was hostile or aggressive and insisted that the complainant was put at ease by him personally.
The complainant could have had a re-run of her interview after the issue of LCR 17618 but it did not happen. He did not know why. He could not recall a delay in the start of the interview. He felt the complainant’s interview was properly through and rigorous but not hostile. She undersold herself on the day.
He agreed that some examiners marked lower than others, but yet none of them thought that the complainant had met the criteria, and this was the basic problem.
He disagreed that the criteria had been set at a level which the complainant could not have met. He felt that the granting of a subsequent 5-year fixed-term contract to the complainant was proof that she was treated sympathetically and that the bad interview, which could have disqualified her from working in the position, was not held against her.
Dr Conway(Head of Department) Testified that the complainant’ low marks at interview were entirely on the basis of her failure to reach the minimum standards under any heading with almost any interviewer. His marks were particularly low and this reflected dissatisfaction both with the claimant’s performance and C.V. to date and with her interview responses.
At no stage in the discussions did the question of age arise, directly or indirectly. He agreed that he had had an input into the claimant’s interview matrix. He had made comments and minor changes to the template in April and May 2001. He agreed that the original grid was drawn up by Dr. Hayes and observed that he thought it was well put together.
He agreed that there was no member of the Board who came directly from the University of Limerick but that the most important factor was that experts in the particular areas (one of whom he knew beforehand) were on the Board. He did not discuss the interview either before or afterwards with any Board member.
It was put to the witness that in answer to one of his questions, when speaking about possible conflict with students, it was alleged that the complainant said, “I’m in control” in reference to such a situation and that she denied that she had said this. The witness disputed the complainant’s recollection on this matter.
He had no input whatsoever into any possible re-run of the interview.
He felt that the claimant was put at her ease and treated generally in a fair and impartial manner by the Board.
He had wished to keep one of the other “older” lecturers on, doing part-time lecturing, but the lecturer obtained work elsewhere and was not available.
It is for the complainant to establish facts from which an inference of discrimination may be drawn. If the complainant succeeds in this it is for the respondent to prove on the balance of probabilities, that such discrimination did not occur.
Having heard the evidence and read the submission the Court is satisfied that the complainant has established the following facts:-
Facts Established by the Court:
1. The complainant was some years older than any other candidate for permanency.
2. The complainant’s interview matrix was constructed differently to most of the other matrices, which were identical. It had more sub-categories in each category.
3. Her Head of Department, Dr. Conway, customised or approved this matrix.
4. Her marks were, on average, 50% to 75% lower than those allocated to the other candidates.
5.Her Interview Board was differently constructed to those of the other candidates in that there was no University of Limerick representative on her Board.
6. The interview board found her to be completely unsuitable for permanent appointment, yet the college reappointed her to the same position for a further 6 years as a fixed-term worker.
7. As only minimal records exist, the process could not be said to be transparent or examinable.
8. She was the only candidate not to qualify for permanent appointment.
Having found the facts to be established by the complainant, the Court is of the view that they are sufficient to allow an inference to be drawn that the complainant was discriminated against on the grounds of her age. In deciding this the Court has adopted the position set out by it in Nevins Murphy & Flood v Portroe Stevedores 2005 16ELR 282 where the Court stated:-
“It is generally acknowledged that cases of alleged discrimination present special problems of evidence and of proof. Those who discriminate unlawfully rarely do so overtly and do not leave evidence of the discrimination within the complainant’s power of procurement (see Nikoto v Citibank [2004] 15 ELR 116).
- Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.
The Respondent's rebuttal evidence:
The Respondent stated that the complainant's interview did not go well. She did not meet certain aspects of the criteria set by her Department and did not give answers which were to the satisfaction of the board members. The Respondent also cited her alleged academic teaching and attitudinal shortcomings. The Respondents allege that it was these factors which caused them to deny the complainant permanency and that that decision had nothing to do with her age.
Court's Findings
During the course of the hearing, it became clear to the Court that the thrust and ethos of the interview process was to change and modernise the institution, and to appoint to permanency younger and more dynamic people who would be able to meet the requirements of a younger and more dynamic head of Department.
At the time of the interview the complainant was 59 years of age, and was a long serving member of a religious order, schooled in a different ethos, and guided strongly by the virtue of obedience, both to those above and below. It is the view of the Court that, unfortunately, her employers regarded her as a person from another era who was "out of her time" and would not fit into the idea of a modern 21st Century institution which the College wished to establish.The Court finds that the respondents have not satisfactorily discharged the burden placed upon them. The Court finds that while the complainant would have undoubtedly lost marks for not having completed her PhD, and for her lack of research and publication, nevertheless the difference in marking between her and the other candidates in an interview for permanency, coupled with the fact that, having found her completely unsuitable, without any effort to provide retraining, the College then re-appointed her to that position until retirement, can only lead the Court to conclude that the Respondents, while not specifically taking the plaintiffs age into account, decided that because her approach and ethos were those of someone from a different era, accordingly she would simply not "fit in". Since the complainant's approach to teaching and her ethos were inextricably linked to her age and the era in which she grew up, the respondents did discriminate against the complainant on the grounds of her age in breach of Section (2) & 8 (1) of the Act.
Determination
The complainant suffered loss of earnings as she was unable to obtain increments and in theory lost the chance to compete for full lecturer status. The Court awards the complainant €3,500 on this ground.
In addition the Court awards the complainant €5000 for the effects of the Act of discrimination.
Signed on behalf of the Labour Court
Raymond McGee
18th February, 2008.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.