The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-261
PARTIES
Ian Cornelius
AND
University College Dublin
(Represented by IBEC)
File reference: EE/2009/219
Date of issue: 23 December 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age - Access to Employment - Promotion
1. DISPUTE
1.1 This dispute concerns a claim by Mr Ian Cornelius that he was discriminated against by University College Dublin on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts in relation to access to employment and promotion in terms of section 8 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 3 April 2009 under the Employment Equality Acts. On 30 June 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 26 July 2010 and final information was received on 6 October 2010.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he started work for the respondent in 1978. He is the Head of School of Information and Library Studies. In September 2007 the Professor and Associate Professor in the School of Information and Library Studies both retired and in June 2008 the post of Professor was advertised, with a closing date of 10 October 2008. The complainant was involved in the recruitment process as he was asked to prepare recommendations for the external members of the interview board and in the advertisement his name was given for anyone who wanted to make "Informal Enquiries" regarding the post.
2.2 On 6 October 2008 he sent an email to members of the School of Information and Library Studies regarding the interview board and also confirming his intention to apply for the post, and that he would therefore play no further part in the recruitment process. On 7 October 2008 the complainant met the College Principal of Human Sciences to discuss the composition of the interview board. The complainant submits that he told her that he was applying for the position of Professor and she advised him not to do so, that UCD would not appoint someone so close to retirement and it was intended to be a new blood post and not intended for internal candidates. He also submits that she said that the President took the view that there were alternative routes for internal candidates to get appointed to full professorships.
2.3 The complainant submits that this is the only School of Information and Library Studies in the island of Ireland and therefore the only Professorship and he notes that no one from Ireland was interviewed for the post.
2.4 The complainant submits that he was extremely upset after the meeting and initially considered not applying, but on 10 October 2010 he took his application to HR and met someone who he told about his conversation with the College Principal. She told him to email his concerns to her and he did this on 14 Oct 2008, indicating that he considered the College Principal to have been discriminatory against him on the grounds of age. He got a reply stating that his email was being forwarded to the Employee Relations Manager who would contact him. The complainant submits that the Employee Relations Manager never responded.
2.5 The complainant submits that on 25 November he was told by the College Principal that he was not being short listed for the post but that the external assessors had wanted him short listed. On 28 November 2010 he was notified formally by HR that he had not been short listed. On 8 December 2008 he replied to HR expressing his concerns and requesting reasons why he had not been short listed and for the respondent to answer his earlier concern that he had been discriminated against on the grounds of his age.
2.6 On 29 March 2009 he requested HR to advise him if there had been any progress and he was told the following day that the matter had been passed to the Employee Relations Manager and on 3 April 2009 he submitted this claim to the Equality Tribunal.
2.7 The complainant submits that he was 63 years of age when he applied for the post of Professor of Library and Information Studies and he considers the attitude of the respondent to be discriminatory on the grounds of his age.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment in relation to the complainant's age took place.
3.2 The respondent submits that it is usual for potential candidates to express their interest at an early stage and then absent themselves from all discussion in relation to the post. In this instance the complainant made up his mind at a late stage, having been involved in the recruitment process.
3.3 The respondent submits that the College Principal does not have a verbatim record of what was said at the meeting with the complainant on 7 October 2008 and the complainant did not take verbatim notes of the meeting. The respondent submits that internal candidates must meet the criteria to be interviewed and the College Principal was surprised that the complainant was intending to apply as she did not consider him to be competitive for the chair. She did not want him to have expectations of being short-listed or appointed that were unrealistic; she was trying to ensure that a colleague was not disappointed. The respondent further submits that the College Principal is very experienced in academic recruitment and has developed a keen knowledge of what standards are required.
3.4 The respondent submits that all internal candidates must meet the criteria for the post in order to be interviewed and the complainant was not short listed based on the essential criteria for the post and he was not excluded because of his age. He would have been appointed if he was the best candidate and the respondent cited that such an appointment was made to the Chair of Sociology when the successful candidate was 62 years of age.
3.5 The respondent submits that there were six essential criteria and the complainant did not meet three of them:
- he had not supervised post graduate students to completion of PhD
- he had not secured funding for research, and
- he did not have a substantial record of peer-reviewed publications.
3.6 On 22 December 2008 HR emailed the complainant giving him feedback as to why he was not short listed, and gave him the reasons above. He was advised that if he wished to lodge a formal grievance he should do so in writing. On 30 March 2009 the Employee Relations Manager emailed the complainant and advised him that his grievance needed to be lodged formally in writing. The respondent recognised that this email was sent to an incorrect email address and was therefore not received by the complainant.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant was discriminated against on the grounds of his age in relation to access to employment and promotion. It is the usual approach of the Equality Tribunal that access to employment claims relate to cases where the claimant is not already working for the respondent. In this claim the complainant was already working for the complainant and applying for a position at a higher level. I am therefore investigating this claim in relation to promotion. Section 8(8) of the Acts states:
(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds --
(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person
is offered or afforded such access, or
(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.
4.2 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". In this claim the ground is age and is made in relation to an application for promotion.
4.3 The facts are that the complainant was working for the respondent as Head of the School of Information and Library Studies. On 10 October 2008 he applied for the Professorship in Library and Information Studies. On 25 November 2008 he was told by the College Principal that he had not been short-listed to be interviewed for the position. After he made enquiries he received an email from Human Resources on 22 December 2008 setting out the reasons he had not been short-listed for interview.
4.4 On 7 October 2008, shortly before he submitted his application, the complainant told the College Principal of his intention to apply and he asserts that at that meeting the College Principal made the remarks that he contends amount to discrimination on the grounds of age: that UCD would not appoint someone so close to retirement and it was intended to be a new blood post and not intended for internal candidates The respondent asserted that no verbatim record of the meeting was kept and what the complainant recounted was selective. At the hearing the College Principal stated she could not remember what was said but what the complainant alleges did not sound like something she would say. After further enquiries she conceded that if the complainant said she made the comments then she probably did. I therefore conclude that the comments about the complainant's closeness to retirement were made. As the College Principal chaired the short listing process I find that this raises an inference of discrimination and the complainant has established a prima facie case of discrimination on the grounds of age in accordance with section 85A(1) of the Acts and "it is for the respondent to prove the contrary".
4.5 The College Principal stated she was surprised he was applying and in their conversation on 7 October 2008 was trying to avoid the complainant being disappointed as she considered him not to be competitive for the post. The respondent contends this opinion was borne out by the short-listing process which was carried out by the internal members of the interview board who assessed the candidates against the essential criteria for the post. They also took into account a list of candidates proposed for interview by the two external members of the interview board and the President of the College. This process judged him not to meet three out of the six essential criteria and he was therefore not short-listed. The complainant was told by the College Principal that the two external assessors had included him in the list they proposed for interview.
4.6 Following the meeting on 7 October 2008 the complainant sent an email to Human Resources indicating that he considered he had been discriminated against and he was informed that his email had been forwarded to the Employee Relations Manager, who did not reply to the complainant and did nothing else with the complaint. If this complaint had been acted on then it could have been investigated before the short-listing took place. As it was the College Principal was unaware that a complaint had been made and proceeded to chair the short-listing process.
4.7 The complainant disputed what the respondent had indicated were his shortfalls in the essential criteria and cast doubt on the relevance of the credentials of one the candidates who was short-listed for interview.
4.8 The respondent submitted a form which had been completed during the short-listing process and which showed that they considered the complainant had met three of the essential criteria. They contend he was not short-listed on the basis of the information provided in his application because he did not meet the remaining three. These were:
- Significant post-doctoral experience in academic environments or teaching experience at University level, including the supervision of postgraduate students up to and including PhD level.
The comment on the short listing form for the complainant states: "Considerable teaching experience-supervision at masters level MLIS but no evidence of PhDs to completion"
The complainant's CV stated "Supervision of MLIS, MA, Mlitt and PhD students" and did not refer to whether the PhD supervision had been to completion. The complainant contended that he was, at the time he applied, supervising a Ph D student but had not done so to completion because his opportunities to do so were limited. The respondent's comments could only have been made on the basis of personal knowledge of the complainant, something which might not have been possible for the other candidates.
- A successful record in securing funding for research.
The comment on the form for the complainant states: "None"
The complainant contended that his CV showed that he had satisfied this criteria. Whilst he contended that another candidate who was short listed was noted as having potential to secure funding.
The respondent countered that the complainant's funding achievements were not for research.
It is unclear as to whether the short listing board's comments could have been made without personal knowledge of the complainant.
- A record of scholarship and outstanding research in the field evidenced by a substantial record of peer-reviewed publications of international standing.
The comment on the form states: "Evidence of some published work in quality outlets- book in 1996 and 2002 ARIST and evidence of more recent submission of work. However this does not amount to the critical mass that would be expected for a Chair in a subject. 4 Google/2 Scopus"
The complainant's CV lists 2 books, 2 reportings and proceedings, 1 software and 19 articles, conference proceedings, book chapters and pamphlets from 1973-2008. The complainant contended that for the College Principal to state that his published work was "far too thin", as she had noted on his CV submitted with his application for this position showed that she had no knowledge of the field. He also contended that the same candidate he questioned in relation to research had very few relevant publications in the area of Information and Library Studies.
The respondent provided a table showing the publications of the Chairs of Sociology, Political Science and Information and Library Studies and the complainant to demonstrate the comparatively low output of the complainant. In a post hearing submission the complainant queried the output of the Chair in Information and Library Studies and the respondent conceded their initial submission was incorrect.
4.9 The College Principal asserted that she tried to discourage the complainant from applying for the Professorship because she did not consider him to be competitive for the post. However, if that was the case, given the respondent's submission that she was very experienced in academic recruitment, I do not understand why comments were made about the complainant's closeness to retirement and not about his lack of competitiveness for the post in relation to the criteria set down. Furthermore having made the comments on 7 October 2008 she then went on to chair the short-listing process on 25 November 2008. I conclude that the short-listing process did not judge the complainant purely on an objective assessment of his application against the criteria for the post, as some personal knowledge of the complainant was needed for the short listing board to reach the conclusions they did. This is not in itself discriminatory but when taken together with the College Principal's comments to the complainant, when he told her that he was applying for the position, leads me to conclude that the short listing process was tainted by these comments and that this amounts to discrimination on the grounds of age in relation to promotion.
5. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to promotion.
I order the respondent to pay the complainant €5,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
____________________
Hugh Lonsdale
Equality Officer
23 December 2010