Equality Officer Decision No:  DEC-E/2010/093

Parties

Rath

(Represented by  Irish Federation of University Teachers)

And

University College Dublin

(Represented by IBEC)

File No: EE/2007/001

Date of issue: 8 June, 2010

Headnotes: 

Employment Equality Acts, 1998-2007 - sections 6 and 8 -age- discriminatory            treatment - promotion-- burden of proof.

1.         DISPUTE

This dispute involves a claim by Dr. Myles Rath that he was discriminated against by University College Dublin on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts, when it failed to appoint him to the position of Associate Professor following the promotion rounds in July, 2006.

2.         BACKGROUND

2.1   The complainant applied for promotion to the grade of Associate Professor with the respondent in the promotion round of 2006 and was unsuccessful in his application. He appealed this decision and his appeal was also unsuccessful. The complainant states that he is eminently qualified for promotion and submits that the respondent discriminated against him on grounds of age contrary to the Employment Equality Acts, 1998-2007. The respondent rejects the complainant's assertions in their entirety.

2.2   The complainant referred a complaint under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 3 January, 2007. In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 27 May, 2009, the date the complaint was delegated to me. Submissions were received and exchanged between the parties and Hearings were held on 17 December, 2009. A small number of issues arose which required further clarification and this gave rise to correspondence between the Equality Officer and the parties. This process concluded in late January, 2010.

3.         SUMMARY OF COMPLAINANT’S CASE

3.1      The complainant states that he applied for promotion to the position of Associate Professor in University College Dublin (UCD) in January, 2006 through Internal Promotions Pathway 4A - an evidence based selection process in which candidates were assessed across four pre-determined criteria as follows - (i) Research and Scholarship, (ii) Academic Leadership, (iii) Teaching and Learning and (iv) Contribution to the University and Wider Community. Applicants were generally required to have a minimum of five years' service at Senior Lecturer level. Candidates were required to furnish an application form, list of publications, teaching portfolio, copies of five publications regarded by the candidate as the most significant since his/her last promotion (in addition to his/her single most significant publication to date, if not included her) and three external academic referee reports. The complainant states that he was the oldest of all candidates who submitted an application for promotion and submits that he was well qualified for promotion. He further contends, in particular, that he was better qualified than twelve named comparators (details supplied) who work in disciplines closely related to his. In addition, the complainant asserts that the selection process itself was flawed and contrary to natural justice in that the procedures followed were not in compliance with the "rules" for the promotion round, that comments made about him in the reports of the relevant internal committees within the respondent are at variance with the facts and that the age profile of successful candidates demonstrates a pattern of age discrimination. In summary, the complainant submits that he was the subject of unlawful age discrimination in respect of his application for promotion.

3.2   The complainant asserts that the negative comments made in the report of the College of Life Sciences Committee (which covers the discipline in which the complainant works) and the decision (and comments) of the respondent's Committee on Academic Appointments, Tenure and Promotion (UCAATP) are at variance with the comments contained in the statements made by the three external assessors with expertise in his disciplinary area (who were selected by the respondent), supports his contention that the process was discriminatory. In particular he submits that the UCAATP's comment in its report that "there is little evidence of first author publications" has an age dimension to it in that in the general area of Animal Science first author publications occur early in one's career adding that the comment is also at variance with the statement included in the "pathway" document which states that "emphasis will be placed on the body of work produced since the applicant's last promotion". The complainant further contends that his publication record, in terms of volume,  the "high impact" nature of the publications in which the articles appear and the number of times those articles have been cited subsequently, exceeds all of the twelve candidates to whom he compares himself. In addition, as regards the citation issue, the complainant states that he was ranked among the top 1% of agricultural scientists included in the listing prepared by Thompson Scientific - known as Essential Science Indicators - which is acknowledged as an accurate indicator of the most cited scientists worldwide. The complainant states that only one of the twelve comparators is included in the top 1% category for his discipline.

3.3   The complainant contends that the comment in the UCAATP's  Report "that there is little evidence of research funding" in his application is also discriminatory. He adds that he had for many years being involved in collaborative research with Teagasc, which had resulted in a large body of research publications and the completion of a large number of Master and PhD degrees. He contends that his approach is consistent with the goals of the respondent's current Strategic Plan - which refers to "developing strategic alliances with national and international institutions". In the course of the Hearing the complainant stated that he considered this collaboration to be as beneficial to the respondent as research funding brought directly into UCD and that he made no sense at his age to seek direct funding.

3.4   The complainant asserts that there were procedural irregularities in the manner in which his application was processed. Firstly, he states that the College of Life Science Committee Report indicates his application was incomplete. He states that the respondent's Staff Manual on Promotion to Associate Professor (at paragraph 2.41.2) provides "that the University reserves the right to return application materials to the applicant where ... or there is lack of compliance with the standards required. In such situations, the applicant will be given 10 working days to resubmit a revised application.". The complainant states that he receive no communication from the respondent that his application was incomplete and submits that the comments of the College Committee are not justified. Secondly, the complainant states that the membership of UCAATP did not have sufficient knowledge of his particular discipline and therefore the refusal of the respondent to permit him furnish opinions from Academics within UCD who had expert knowledge of his discipline and research, assumed critical importance in the initial selection process. Thirdly, the complainant states that a number of the applicants did not possess the required five years' service at Senior Lecturer and were therefore pre-selected for inclusion in the final selection process - which the complainant submits confers an advantage on those candidates as they were not subject to the same constraints as him on the use of internal UCD referees.  Finally, he asserts that the College of Life Science Committee acted beyond its remit when it recommended against the complainant's promotion.   

4.         SUMMARY OF RESPONDENT’S CASE

4.1   The respondent rejects the complainant's assertions in their entirety. It asserts that the Internal Promotions Pathway 4A  was an extremely progressive initiative, which operated for the first time in 2006, to allow academics to reach full potential once they had reached the appropriate academic standards across the four pre-determined criteria as set out by the complainant. It states that the selection process was one where candidates were competing with no one but themselves and candidates are required to furnish evidence to support their case for promotion set against the criteria. The respondent states that the complainant failed to present sufficient evidence of research funding and publication in peer reviewed journals and the UCAATP formed the consensus view that he was not qualified for promotion.

4.2    The respondent accepts that the complainant was the oldest applicant in the promotion round. It states however that age had no bearing on the outcome of the process. It further accepts that the College of Life Science Committee went beyond its remit under the selection process by furnishing a recommendation on the complainant's suitability for promotion. The respondent states however, that the Committee made such a recommendation (in error) in respect of all thirty-one candidates from disciplines covered by the College of Life Science. It adds that one candidate was recommended by the College Committee and was not so recommended by UCAATP  and four candidates were not recommended by the College Committee but were considered suitable by UCAATP. It also states that of the seventy-seven applications received under the promotion round, forty candidates did not have the necessary five years' service at Senior Lecturer level  - twenty-one of these were in the College of Life Sciences and all of those in that College who applied were granted exemption by the College Committee. The respondent submits that these actions could not be considered as constituting less favourable treatment of the complainant on grounds of age.

4.3       The respondent states that the Pathways process provided that the candidates were assessed by UCAATP  across the four pre-determined criteria set out at paragraph 3.1 above. The UCAATP comprised twelve senior academics, two of whom were external to the respondent and appointed by the UCD President. It adds that the candidates' applications were considered alphabetically with a consensus decision after discussion. The UCAATP was furnished with a copy of the candidate's application form, list of publications, teaching portfolio and three external academic referee reports. It also received the Report from the relevant College Committee and the Reports of the three independent External Assessors. The respondent states that the UCAATP met on 22 June, 2006 to assess applicants from the College of Life Sciences and recommended twenty-one candidates for promotion to Associate Professor. In the course of the Hearing evidence was given by Dr. A who participated in the UCAATP deliberations. His evidence was that all of the applications were deliberated upon in the same manner and all decisions were reached by consensus. He added that the complainant's application did not contain systematic information on the impact of articles/publications submitted by him - this was required (and had been identified as necessary in the guidelines issued to candidates in respect of the promotion round) and other candidates had furnished such information. The respondent adds that most candidates who are promoted to Associate Professor and Professor include a number of first author publications in their applications and it is not unusual for these to be reflected in their early career. In the course of the Hearing Dr. A stated that the complainant's application placed more emphasis on his recent work and not enough on his previous accomplishments. As regards research funding Mr. A stated that the UCAATP viewed cash into the College as evidence of achievement under that criteria adding that he had no recollection of the complainant's Teagasc collaboration being discussed as an alternative to this in the course of the deliberations. Mr. A concluded by stating that there were issues of "clarity of expression" around the complainant's application and that the evidence of his achievements could have been amplified better. The respondent had made every effort to make the selection process as robust and transparent as possible and be fair to all applicants. He strongly rejected any suggestion that the age of the candidate was a factor taken into consideration by UCAATP.

4.4       The respondent accepts that paragraph 2.41.2 of the Staff Manual on Promotion to Associate Professor (which is repeated at paragraph 6.1 of the Pathways document) provides "that the University reserves the right to return application materials to the applicant where ... or there is lack of compliance with the standards required. In such situations, the applicant will be given ten working days to resubmit a revised application.". It states however that this relates to administrative deficiencies only - i.e. insufficient number of documents submitted. It adds that there was no such deficiency in the complainant's application and therefore there was no need to communicate with the complainant on the matter. It submits that the comment contained in the College of Life Science Committee's Report relates to the apparent lack of necessary information contained in the complainant's application to support his candidacy. The respondent also accepts that it refused the complainant permission to furnish opinions from Academics within UCD who had expert knowledge of his discipline and research on his suitability for promotion. It states that no such latitude was afforded to any other candidate and therefore the complainant was not treated differently in that respect. It submits therefore, that the actions of the respondent in either of the above matters are not discriminatory contrary to the Acts.

4.5       Finally, the respondent rejects the assertion that there was a pattern of age discrimination in respect of the promotion round to Associate Professor in 2006. It states that the age profile of the candidates was as follows:

            It adds that the age profile of the twenty-one successful candidates from the College of Life Science, which is the College which covers the complainant's discipline, was as follows:

• The respondent submits that these statistics do not support the complainant's assertion that there was a pattern of age discrimination against older candidates either in the selection process generally or in relation to candidates from the College of Life Science. It concludes by stating that the complainant was subjected to the same assessment across the same criteria as all other candidates and he simply failed to provide the required evidence in his application to demonstrate that he met the standard required for promotion.

5.         CONCLUSIONS OF THE EQUALITY OFFICER

5.1     The issue for decision by me is whether or not the respondent  discriminated against the complainant on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998- 2007 and contrary to section 8 of those Acts, when it failed to promote him to the position of Associate Professor in July, 2006.  In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as the evidence advanced by the parties at the Hearing.

5.2       Section 85A of the Employment Equality Acts 1998 - 2007 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 the he suffered discriminatory treatment on the grounds specified. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed.

5.3      The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. It is trite law that the probative burden shifts where a complainant proves facts from which it can be presumed that s/he has suffered discrimination. It is also trite law that it remains for this Tribunal to decide, where the primary facts as alleged are proven, if they are inference or presumption contended can be properly drawn from them. This entails a consideration of the conclusions which may appropriately be drawn to explain a particular fact (or set of facts) which have been proven in evidence. The initial probative burden required of the complainant is to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proven facts. It is sufficient that the presumption is within a range of inferences which can reasonably drawn from those facts. In the instant case the following facts have been agreed or proven in evidence:

Ø the complainant was the oldest applicant in the selection round and it follows that all of the 48 successful candidates were younger than him.

Ø the complainant had over forty years' service with the respondent - which exceeded any other candidate.

Ø the complainant had (at the time of the promotion process) thirteen years' experience as a Senior Lecturer. Candidates required a minimum of five years' experience at that level to be eligible for promotion under the promotion round - although there was a mechanism where this could be set aside. Forty out of the seventy-seven candidates (52%) did not fulfil this requirement and were granted an exemption from same by the respondent.

Ø the complainant was considered suitable for promotion to the position of Associate Professor by each of the three independent external Assessors nominated by the respondent.

Ø the complainant had published 54 articles up to the time of the promotion round - which far exceeded any of the twelve successful candidates to whom he primarily compared himself.

Ø the complainant was acknowledged as amongst the top 1% of agricultural scientists included in the listing prepared by Thompson Scientific - known as Essential Science Indicators - which is acknowledged as an accurate indicator of the most cited scientists worldwide. Only one of the twelve comparators had a similar honour in his area of discipline.

Ø 40% of the candidates over sixty years of age were successful as against the success rate of those under that age was 66%.

I light of the foregoing I find that the complainant has established a prima facie case of discrimination on grounds of age contrary to the Acts and the probative burden shifts to the respondent to rebut the inference raised.

5.4       The respondent states that the promotion round was conducted in a fair and objective manner. All candidates were treated the same and were assessed across four pre-determined criteria. It adds that the assessment process was one based on written applications supported by evidence of accomplishment and given the senior academic level of Associate Professor it was up to candidates to have familiarised themselves with all aspects of the assessment process and ensure their applications were comprehensive. It submits that the complainant's documentation did not contain sufficient evidence to warrant promotion and this was the only reason his application was unsuccessful. I propose to examine the assessment process in the first instance. All candidates were provided with documentation details the four pre-selected criteria of assessment and the process and procedure involved. This documentation also provided come guidelines as to what might comprise "Indicative Evidence of Accomplishment" across each of the four criteria. It appears to me therefore that the respondent adopted an approach which sought to assist candidates compile as comprehensive an application as possible. Copies of the documentation submitted by every candidate was circulated to three independent external Assessors who had experience of the candidate's discipline to evaluate and determine whether the candidate demonstrated sufficient evidence of accomplishment across the criteria. In addition, the candidate's College Committee (in the complainant's case the College of Life Science) comprising Professors and Associate Professors of the various disciplines within that College - and who would have knowledge of the complainant's discipline- was requested to furnish a Consensus Report on each candidate within that College for transmission to the UCAATP. This Committee (UCAATP) made the final decision on recommending a candidate's promotion. The Committee comprised the President of the University, nine other Senior Academics from the University and two external Senior Academics. In the course of the Hearing evidence was given by Dr. A as to the nature of the deliberations and stated emphatically that the age of candidates was never discussed. I found him to be a credible and forthright witness and accept his evidence as compelling. I am satisfied that the respondent applied the same process to all candidates. I am further satisfied that the respondent  made every effort to make the process fair and transparent and in doing so create an environment in which discrimination would be extremely difficult to exist. Consequently, I cannot conclude that the process as outlined above was tainted by discrimination.

5.5      The complainant contends that certain procedural flaws in the process existed and thus support his assertion of discrimination. The first of these relates to the Committee of Life Science acting beyond its remit in recommending that the complainant was not suitable for promotion. The respondent accepts this happened and that it was outside the Committee's mandate - however it acted in the same manner for all thirty-one candidates from that College. Evidence was adduced at the Hearing by the respondent which demonstrates that the UCAATP did not attach much weight to the College Committee's opinion - where it recommended four candidates for promotion who were not so recommended by the College Committee and did the opposite for another candidate who had been recommended as suitable. Mr. A also gave evidence at the Hearing that the UCAATP took a more "holistic" approach to each assessment and did not place any undue weight on the College Committee's opinion. In the circumstances I cannot accept that the ultra vires actions of the College Committee constitute unlawful discrimination of the complainant. The second procedural matter referred to by the complainant concerns the fact that forty of the candidates who were assessed did not have the five years' Senior Lecturer service requirement. I am satisfied that this exemption was permitted under the Pathways process and was applied to candidates in five Colleges within the University. I cannot therefore accept that it constitutes less favourable treatment of the complainant contrary to the Acts. The complainant also takes issue with the respondent's failure to allow him furnish opinions from Academics within UCD who had expert knowledge of his discipline and research on his suitability for promotion. No other candidate was permitted to do so and it follows that it cannot constitute less favourable treatment of the complainant - indeed it appears to me that the complainant was seeking more favourable treatment in respect of this issue. Finally I accept the respondent's evidence that the contents of paragraph 2.41.2 of the Staff Manual on Promotion to Associate Professor (which is repeated at paragraph 6.1 of the Pathways document) applies to errors or omissions of an administrative nature and did not therefore apply in the complainant's case.

5.6      I shall now examine the statistical information on the promotion round in 2006 which was submitted by the respondent. The complainant was 63 years of age at the time of the assessment and therefore falls into the 60-65 age bracket in the tables at paragraph 4.5 above. The data shows that four from ten candidates in this age group (40%) were successful in the promotion round although this falls to 25% when the data relates to the College of Life Sciences only. The overall success rate of candidates (forty-eight from seventy-seven) equates to 62% of candidates. The overall success rate for candidate under 60 years of age is forty-four from sixty-seven - 66%. When those age groupings in the College of Life Science are examined the respective figures are 68% (twenty-one from thirty-one) and 95% (twenty from twenty-one). When examining statistics one much always be aware factors that can distort the outcomes such as the size of the pool involved and the consequences of a shift of one person from one category to another. In the instant case the success rate of the complainant's age group within the Life Science College would increase to 50% if one other candidate was successful - which would be identical to the 50% success rate in respect of the 30-35 age group in the College. Similarly, the reduction of the number of successful candidates in the overall data in the 30-35 age group would have the effect of reducing the success rate to 50% - which is only slightly higher than the success rate of the complainant's own group. It follows therefore that statistical data must be treated with caution and I do not accept that of itself, it is sufficient demonstrate a bias in the selection process.

5.7       Both this Tribunal and the Labour Court has held on many previous occasions[1] that it is not our role to examine whether the most meritorious candidate was successful in a promotion process, rather it is our role to examine and decide whether or not the selection process is tainted by discrimination - in this case age. In light of my comments in the preceding paragraphs I am satisfied that the respondent had rebutted the inference of discrimination raised and I find that the respondent did not discriminate against the complainant contrary to the Acts.

6.         DECISION OF THE EQUALITY OFFICER.

           I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008.  I find the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it failed to appoint him to the position of Associate Professor in July, 2006 and his complaint fails.

           _______________________________

            Vivian Jackson         

            Equality Officer

            8 June, 2010