Equality Officer’s Decision
DEC-E2010-004
Professor Bryan Michael Cooke
versus
University College Dublin
(represented by Fiona Higgins, IBEC)
File reference: EE/2006/488
Date of issue: 18th January 2010
Keywords: Employment Equality Acts, Discrimination, Age, Promotion, No prima facie case
Dispute
1.1 This case concerns a complaint by Professor Bryan Michael Cooke against his employer University College Dublin that he was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts'] regarding access to promotion.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 18th December 2006. In accordance with her powers under Section 75 of that Acts, the Director delegated the case on 9th December 2008 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were received from both parties and a Hearing was held on 6th November 2008. The final correspondence received in relation to information sought by the Equality Officer was on 5th August 2009. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Preliminary issue – time limits
2.1 The respondent submits that the Equality Officer has no jurisdiction to look at events after the complainant lodged his EE1 form with the Tribunal on 15th December 2006. His complaint is based on him being notified in July 2006 on being unsuccessful for promotion from Associate Professor to Full Professor. At the time of his lodging the complaint, Professor Cooke was awaiting the result of an internal appeal within UCD. Professor Cooke lodged his complaint following advice that it would be prudent to do so before receiving the results of the internal appeal so that he could be certain that it was within the six-month time limit. The respondent submits that he should have waited until the results of this appeal before lodging his complaint. The respondent refers to the Labour Court Decision Department of Health and Children v Gillen:
Two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Acts, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant on the same ground.[1]
2.2 However, the principle outlined in Gillen can be used to support the opposite of the argument the respondent is making. If two acts can be consider as separate manifestations of the same disposition to discriminate, then incidents (provided both sides have notice of same) subsequent to the lodging of the complaint but prior to the Hearing may be taken into consideration by the Equality Officer. Statutory time limits are retrospective rather than prospective. If the respondent’s argument was taken at its height, it would be necessary for a complainant to lodge a separate complaint for every alleged incident of discrimination subsequent to his initial referral. Therefore, I have jurisdiction to examine incidents related to this complaint subsequent to 15th December 2006.
Summary of the complainant’s case
3.1 Professor Cooke became an Associate Professor in 1999. He applied to become a full Professor on 12th January 2006 through Internal Pathway 4b. He was aged 61 at this time and due to retire at 65. Internal Pathway 4b was a promotion system brought in by the President of UCD to appoint Associate Professors to Full Professors based on personal academic merit. The promotion criteria for full Professorship were Research and Scholarship, Academic Leadership, Teaching and Learning and Contribution to the University and the wider Community. Applicants were required to submit an application form, teaching portfolio, list of publications, copies of five publications regarded by the applicant as the most significant since his last promotion and three external academic references. The complainant submits that Question 8 on the application form is age-discriminatory. The question is below and the complainant's answer is below:
In this section of the form you should indicate the strategy, trajectory and goals you plan to achieve during the next five years and/or the balance of your career at UCD. This plan should include anticipated funding (if any) and/or should relate to the School College/University Strategic Plan where appropriate. This should not exceed three A4 pages.
In the 4 years (complainant's emphasis) remaining to me at UCD up to the official retirement age of 65 years my anticipated activities and personal goals are as follows:
Prior to his application, Professor Cooke discussed it with his College Principal. In a letter dated 26th January 2006 he was deemed eligible for promotion by his College Committee. By 24th February 2006, college principals were obliged to send a list of ten external assessors per applicant. Professor Cooke submits that none of the external assessors suggested by the College Committee have an expertise in Plant Pathology. On 16th March the College of Life Sciences met and submitted a report saying that Professor Cooke wasnot suitable for promotion to Full Professor. The complainant submits that this was a catastrophic error on the respondent’s part in that the same committee that said he was eligible for promotion in January said that he was unsuitable for promotion in March.
On 22nd of June the University Committee for Academic Appointments, Tenure and Promotion (UCAATP) which included two externs (i.e. two academics that were not employees of UCD) met to assess applicants to Full Professor from the College of Life Sciences. The UCAATP examined the material submitted by the complainant and the three external assessors as well as the consensus report from the College of Life Science. They found that Professor Cooke was not suitable for promotion. On 4th July 2006 the complainant was informed by UCD that he was not promoted to full Professor.
On 24th October 2006 Professor Cooke appealed this decision on the grounds of age discrimination among other issues. On 23rd April 2007 The UCD Promotions Appeals Committee said that UCD should not have appointed as an external assessor someone who had been Associate Editor of a journal of which Professor Cooke had contemporaneously been editor. They asked the College of Life Sciences to nominate another external assessor unconnected with Professor Cooke with an expertise in plant pathology. This assessor received the same material as the previous assessors. Processor Cooke's application was then to be sent for fresh consideration by the UCAATP. The Promotions Appeals committee note that the consensus report for the College of Life Sciences contained a view on the insufficiency of evidence to support his promotion to full Professorship regarding his leadership quality and contribution to the University. The Promotion Appeals Committee found that this went beyond the College's functions under Internal Promotion Pathway 4b. However, the Committee said that this did not affect the Appeals committee's conclusion regarding his appeal i.e. that it would be sent to UCAATP for fresh consideration.
On 17th September 2007 the UCAATP Sub-Committee chaired by the President of UCD met to consider the appellants claims. On 16th October 2007 the complainant was informed by letter that he did not succeed in his appeal.
The complainant felt he could not apply for promotion in 2007 as his appeal was ongoing. In 2009 Professor Cooke was awarded Butler medal by the Society of Irish Plant Pathologists. It has only been awarded five times since its initiation in 1982. It is given to those who have been deemed to have made a major contribution to plant pathology in Ireland. The complainant submits this shows how highly he is regarded by his peers.
Summary of the Respondent’s submission
4.1 UCD submits that Internal Pathway 4b is designed to provide for internal promotion to the grade of Professor. The grade of Professor is the highest academic grade in the University Structure. Applicants are only considered for promotion to this grade the UCD when they have achieved an internationally-recognised leadership position in their disciplines. UCD submit that assessment for promotion to Professor is founded on the principles of equality of opportunity and transparency in decision-making.
4.2 UCD denies that Question 8 outlined at 3.1 is age-discriminatory. They submit the fact that it makes reference to future planning to the balance of career is reflective of being aware that some applicants will have less than five years left. There were 32 applicants to full Professorship; 22 of these were promoted. There were 6 applicants older than Professor Cooke. Only two of these did not succeed. The respondent submitted the table below of successful applicants:
| College | Age 30- 40 | Age 40 -50 | Age 50 – 60 | Age 60 -65 |
| Arts and Celtic Studies | 0 | 0 | 2 | 1 |
| Business and Law | 1 | 1 | 1 | 0 |
| Engineering Maths and Physics | 0 | 0 | 3 | 2 |
| Human Sciences | 0 | 2 | 1 | 1 |
| Life Sciences | 0 | 3 | 3 | 1 |
| Total promoted to Full Professor | 1 | 6 | 10 | 5 |
The respondent rejects that the complainant could not apply for promotion to full Professor in 2007.
Conclusions of the Equality Officer
5.1 The issue for me to decide is whether or not Professor Cooke was discriminated on the grounds of age in terms of Section 6 2 (f) of the Acts by University College Dublin in relation to promotion contrary to Section 8 (1)(d) of that Acts. Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’[2]
5.3 The complainant submits that the promotion competition is tainted with unlawful discrimination i.e. because he was 61 years of age, he was not promoted to Full Professor. I will now examine whether this is the case. 5 out of 8 applicants between the ages of 60 and 65 were promoted in 2006. This was higher than those aged between 50 and 60 where 8 out of 16 were promoted but lower than the 40-50 age group where 6 out of 7 applicants were promoted. There was only one candidate under 40 and he was successful. Therefore the statistics would not indicate that there was obvious age discrimination in the selection process to Full Professor. However, in Gillen v Department of Health and Children:
The presence of a single successful appointee who was in the same age group as the complainant does not disprove age discrimination, notwithstanding the appointee is of exceptional ability compared to her successful appointees.[3]
For the avoidance of statistical doubt, I requested and received the applications and external assessor reports of all applicants to Full Professor. In the case of the most senior academic appointments where the candidates in question come from such diverse Faculties as Arts, Engineering and Medicine it is particularly difficult for a third party to attempt to independently assess the academic standing of these people in their respective fields. I am of the view that the people best equipped to make that comparison are senior external academics in the respective disciplines. Professor A (member of the UCD Governing Authority) stated in direct evidence that most credence was given to the external assessor's reports by the UCAATP. Three of the four external assessor's reports (three in first round plus one following the recommendation of the Appeals Committee) were lukewarm in relation to the complainant's suitability for promotion. This differed significantly even in comparison to other rejected candidates where the external assessors were more fulsome in their praise. I did not find convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as the candidates that were promoted to Full Professor. Therefore I find that the selection process was conducted in a non-discriminatory way in selecting the most suitable applicants for promotion.
5.4 I do not accept the complainant's contention that because some aspects of Internal Pathway 4B was flawed (as admitted by Promotions Appeals Committee- see paragraph 3.4) that is necessarily discriminatory. Neither do I accept his argument that Question 8( see paragraph 3.1), in itself, discriminates against older people. In his reply (in common with other older applicants, both successful and unsuccessful) the complainant referred to his impending retirement. I am satisfied that the complainant has not established a prima facie case of age discrimination.
Decision
I have concluded my investigation of Professor Bryan Michael Cooke’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant has not succeeded in establishing facts from which it may be presumed that University College Dublin discriminated against him on the grounds of age in relation to promotion.
_______________
Orlaith Mannion
Equality Officer
19th January 2010