Equality Officer Decision No: DEC-E/2011/122
Parties
MacCába, Ó'Coigligh and MacGearailt
(Represented by the Irish Federation of University Teachers)
And
St. Patrick's College, Dublin
(Represented by IBEC)
File No: EE/2008/403-405
Date of issue: 21 June, 2011
Headnotes: Employment Equality Acts 1998- 2007 - sections 6&8 -age - equal treatment -promotion - prima facie case
1. DISPUTE
This dispute involves claims by (i) Mr. Éanna MacCába, (ii) Mr. Ciarán Ó'Coigligh and (iii) Mr. Uáitéar MacGearailt that they were discriminated against by St. Patrick's 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 them to the position of Senior Lecturer following a selection process in June, 2007.
2. BACKGROUND
2.1 The complainants applied for promotion to the grade of Senior Lecturer (Merit Based) with the respondent as part of the selection process conducted by the respondent in June, 2007 and were unsuccessful in their applications. They appealed this decision through the internal process and that appeal was also unsuccessful. The complainants state that they are eminently qualified for promotion, particularly when compared to a younger colleague (Mr. A) and submit that the respondent discriminated against them on grounds of age contrary to the Employment Equality Acts, 1998-2007. The respondent rejects the complainants' assertions in their entirety.
2.2 The complainants referred complaints under the Employment Equality Acts, 1998-2007 to the Equality Tribunal on 16 June, 2008. In accordance with his powers under the Acts the Director delegated the complaints 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 complaints commenced on 14 September, 2010, the date they were delegated to me. Submissions were received and exchanged between the parties and Hearings were held on 21 December, 2010 and 28 January, 2011. 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 mid March, 2011.
2.3 When notifying the parties of the Hearing arrangements the Equality Officer advised them that there appeared to be an issue as to whether or not the complaints had been referred to the Tribunal within the timelimits prescribed at section 77(5)(a) of the Acts and asked the parties to furnish submissions on this matter. As submissions had already been filed on the substantive issue, I advised the parties that I would deal with both the timelimit and substantive aspects of the complaints in a single Decision and not exercise my discretion under section 79(3)(A) of the Acts, to deal with the timelimit matter as a preliminary issue and the parties had no objection to that approach.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainants submit that their complaints were referred to the Tribunal within the six month time limit prescribed at section 77(5)(a) of the Acts. They state that they were told informally by the College President (by phone) on 27 June, 2007 that their applications had been unsuccessful. They add that this position was confirmed to them in writing by letter (from the President) dated 17 August, 2007. The complainants add however, that they only became formally aware of the identities of the successful candidates when their names were posted in the Staff Room in early October, 2007. They state that once they became aware of this they wrote to the College, via the Irish Department Head and subsequently met with the President on 30 November, 2007 to voice their objections to the appointments and seek a review of the decision not to appoint them. They add that they wrote to the President on 7 December, 2007 re-iterating their request for a review and received a response on 21 December, 2007 advising them that the President had no authority to request the Assessment Board to review its decision.
3.2 The complainants state that they wrote to the Governing Body on 9 January, 2008 seeking a reversal of the outcome of the decision not to appoint them to Senior Lecturer outlining their reasons for same. They add that the Governing Body established a Sub-Committee (pursuant to section 35(d) of the Instrument of Government of the College) to consider the matter raised by the complainants and the Chairman of that Sub-Committee (who was also the Chairperson of the Governing Body) wrote to them on 27 February, 2008 rejecting their request. The complainants state that they wrote again to the Chairperson objecting to the inadequacies of the review process and repeated their request for the original decisions to be overturned. They state that their trade union became involved at this time and wrote to the President on their behalf on 23 April, 2008 objecting to the decision not to appoint them. The complainants state that this process culminated in a meeting on 21 May, 2008 between them, their trade union representatives and the President at which it was agreed by the parties that all internal measures to resolve the dispute had been exhausted. It is submitted on behalf of the complainants that the discrimination only "crystallised" on that date (21 May, 2008) and therefore the complaints are referred to the Tribunal within the prescribed timelimits at section 77(5)(a) of the Acts. Mr. Jennins (IFUT) adds on behalf of the complainants that given the parties had engaged in an internal process it was reasonable for the complainants to believe that the original decision not to appoint them would be overturned without recourse to an external third party. It is further submitted on behalf of the complainants, without prejudice to the foregoing, that the same arguments constitute "reasonable cause" to extend the period within which to refer the complaints to the Tribunal in accordance with section 77(5)(b) of the Acts. In this regard the complainants seek to rely on the Decision of the Labour Court in Department of Finance v IMPACT & Ors.
3.3 The complainants were (at the time of the impugned selection process) employed at the grade of Lecturer in the respondent College. They were all assigned to the Irish Department. At that time Mr. MacCába was 60 years' old, Mr. Ó'Coigligh was 54 years' old and Mr. MacGearailt was 53 years' old. Each of them had twenty-eight years' service at the grade of Lecturer with the respondent. They contend that they were better qualified for selection to the position of Senior Lecturer than a younger colleague from the Irish Department (Mr. A) - who was 42 years' old at the time and had less than ten years' service as a Lecturer with the respondent. They submit that the appointment of this person to Senior Lecturer and their non-selection to that grade constitutes less favourable treatment of them on grounds of age.
3.4 The complainants state that candidates were assessed across three pre-determined criteria as follows - (i) Teaching, (ii) Research and Scholarship and (iii) Administration and Service. They add that candidates were required to furnish an application form, a personal statement setting out the reasons why the candidate considered himself/herself suitable for promotion, a list of publications - with copies of the three publications regarded by the candidate as the most significant to his/her candidacy and three eminent referees - one internal and two external. They contend that the selection process was inadequate in that it did not provide for candidates to be interviewed, nor did it provide for candidates to be observed (by the Assessment Board) in a real teaching environment. In addition, the complainants contend that there was insufficient knowledge and expertise amongst the members of the Assessment Board - in particular knowledge and expertise in their own discipline, Irish - to enable them adequately assess their applications. They submit that because of this lacuna the External Members of the Assessment Board were open to being influenced and manipulated by the Internal Members. They add that the respondent could have taken action to address this lacuna. They further state that the respondent extended the membership of the Assessment Board to six persons without recourse to the candidates. They add that this is contrary to the respondent's Policy and Procedures for the competition and undermines the probity of the process. The complainants state that the respondent failed to retain any notes of the deliberations around the selection process and submit that this failure is fatal to the respondent's arguments that the complainants were not discriminated against.
3.5 The complainants assert that several of the successful candidates had a mutual association in the field of history with the President of the College. They further assert that given this "close personal relationship" the President should have exercised his option under the College's Instrument of Government to step down for the Assessment Board and nominate someone else to replace him. They submit that having failed to exercise this discretion he could not be regarded as being a disinterested party. The complainants contend that the selection process was flawed and unfair and was not in accordance with best practice. They add that the process lacked transparency and objectivity. They further contend that the review process which they engaged in at local level in an effort to resolve the dispute was entirely inadequate and did not fully address their concerns. They state that in particular, it deprived them the right to a Hearing by the Sub-Committee, which is the least they expected having invoked the process. They add that the culmination of these shortcomings was that they were discriminated against on grounds of age contrary to the Acts in respect of their applications for promotion.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainants' assertions in their entirety and notwithstanding this submits that the complaints are out of time. It states that the original decision not to appoint the complainants to the position of Senior Lecturer was made by the Assessment Board following the selection process which took place on 18-19 June, 2007. It submits therefore that any act of discrimination took place at this time and that the six month timelimit prescribed at section 77(5)(a) of the Acts commences at that time. It accepts the chronological sequence of events as outlined by the complainants in paragraphs 3.1 and 3.2 above but argues that none of these incidents constitute unlawful discrimination of the complainants. It rejects the complainants' assertion that the any alleged discrimination "crystallised" at the meeting of 21 May, 2008, re-iterating that if any unlawful discrimination occurred, it took place on 18-19 June, 2007. Its adds that the complainants did not refer their complaints to this Tribunal until 16 June, 2008, which is beyond the timelimits prescribed at section 77(5)(a) of the Acts and therefore the Tribunal has no jurisdiction to hear the complaints.
4.2 Without prejudice to the foregoing the respondent submits that the complainants have failed to show "reasonable cause" to enable them avail of the extension of the time for referring a complaint to this Tribunal. It seeks to rely on the Decision of the Labour Court in Cementation Skanska v Tom Carroll in support of its argument on this point. It states that on the basis of their own evidence at the Hearing, the complainants were of the view that they had been discriminated against in early October, 2007 when it was clarified that a younger colleague in the Irish Department (Mr. A) had been appointed to the position of Senior Lecturer and it was open to them at that point to refer their complaints to the Tribunal and they chose not to do so. The respondent submits that these circumstances do not satisfy the test set out in Cementation Skanska v Tom Carroll in that the situation outlined by the complainants does not provide both an explanation for the delay in referring the complainants and an excuse for same.
4.3 The respondent states that that the impugned selection process refers to appointment to the position of Senior Lecturer in the College. It adds that the positions were divided equally between the Humanities and Education Faculties in the College and appointments were made to Designated Duty Posts - posts that related to specific new functions to be performed by the appointee - and merit positions - where candidates were assessed across stated criteria. The respondent adds that these complaints arise from the merit positions in the Humanities Faculty. It states that forty applications were received for the merit based positions in both faculties and were considered by the Assessment Board across the three criteria indicated by the complainants over the period 18-19 June, 2007. The respondent adds that these criteria and the selection process had been extensively discussed with IFUT in advance of the competition and were agreed prior to the competition commencing. It states that candidates for merit posts were not interviewed and candidates were advised that this would be the case about a week in advance of the Assessment Board meeting. The respondent adds that candidates were required to submit the documentation/information outlined by the complainants in support of their application and this material formed the basis of the evaluation process conducted by the Assessment Board.
4.4 The respondent states that the Assessment Board comprised the President and Registrar of the College, two Senior Academics from the University (DCU) and two external Senior Academics. The respondent adds that external members were chosen for their high standing nationally and internationally and submits that the Board was more than competent to perform the task with which it was entrusted. The respondent accepts that the Policy and Procedures for the selection process stated the Assessment Board would comprise five people but states that following receipt of such a high number of applications (forty) and the wide range of disciplines covered by the candidates, the College Senior Management Team (SMT) decided, to appoint a sixth member. It adds that this was a member from within the University (DCU), that the decision was made well in advance of the assessment process commencing and was made without the SMT having sight of any documentation furnished by any of the candidates. The respondent further states the Board had available to it three detailed academic reports (two external and one internal) in respect of each candidate from experts nominated by the candidate themselves and that these referees were requested, when completing their report, to structure it in accordance with the three criteria across which candidates were ultimately assessed. It adds that the Assessment Board members were given copies of all documentation furnished by each of the candidates approximately two weeks before the Board convened. They were also provided with the Policy and Procedure governing the process and Assessment Guidelines, which set out details of the factors which needed to be present in determining what score (between 1-6 marks, 1 denoting under-performance and 6 exceptional performance) to award candidates across each of the three criteria.
4.5 The respondent states that at the outset of the meeting of the Assessment Board on 18 June, 2007 the members of the Board were addressed by the President of the College and he answered any queries they had about the process. It adds that each of the applications was assessed in turn by the Board and initial scores were given by each member across each of the criteria. The respondent further states that a discussion ensued between the Board members at the end of which scores for the candidate were agreed and finalised. It states that the President always gave his opinion last as part of this process and each of the Board members took it in rotation to speak first. It adds that each member of the Assessment Board signed off on the final scores awarded to the candidates. It submits that the selection process was conducted in a fair and transparent manner and rejects the complainants' assertion that the external Board members were open to undue influence by internal members, in particular the President and states that the ages of the candidates was never discussed by the Board in the course of its deliberations. The respondent confirms that no formal notes of these deliberations were made and submits that as the selection process was not interview based there was no need to make or retain such notes. Finally on this point, in the course of the Hearing the President accepted that he had the discretion to nominate someone to substitute for him on the Assessment Board but decided not to do so as he felt it would be a dereliction of his duty. He emphatically rejects the suggestion that he had any "personal relationship" with any of the candidates. He states that he had worked with the respondent since 1981 and in the course of the many roles he had held during that period he would have had contact with all of the candidates in one way or another.
4.6 The respondent states that fifteen appointments were made to the grade of Senior Lecturer following the selection process. It states that in relation to Mr. MacCába, who was 60 years' old at the relevant time, two of the successful candidates were older than him and one was the same age as him. It adds as regards Mr. Ó'Coigligh, who was 54 years' old at the relevant time, seven successful candidates were older than him and one was the same age as him. It states that in relation to Mr. MacGearailt was 53 years' old at the relevant time, eight older candidates were successful. The respondent states that when the ages of the successful candidates from Humanities Faculty are examined - which is the complainants' faculty - one was the same age as Mr. MacCaba and another was 55 years' of age, which is older than either of the other two complainants. The respondent submits therefore the above data demonstrates that the selection process did not result in less favourable treatment of the complainants on grounds of age.
4.7 The respondent states that the complainants availed of their right to appeal the Assessment Board's decision as provided for in the Policy and Procedures governing the selection process. It states that on receipt of these appeals the respondent Governing Body established a Sub-Committee in accordance with the Instrument of Government of the College to examine the complaints. It adds that this Sub-Committee comprised the Chairperson of the Governing Body, a Senior Counsel and a former school Principal and having examined the complaints it found that there were no grounds to alter the original decision. The respondent submits that this process was conducted as set out in the Policy and Procedures governing the selection process. It adds that the expectations of the complainants as to what such a process might entail is not relevant unless it was conducted in a discriminatory manner and it argues that this was clearly not the case.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are (i) whether or not the complainants referred their complaints to this Tribunal within the timelimit prescribed at section 77(5)(a) of the Employment Equality Acts, 1998-2007, (ii) if not, whether or not the complainants have shown "reasonable cause" in terms of section 77(5)(b) of the Employment Equality Acts, 1998-2007 which would enable them avail of the extension of time within which to refer their complaints prescribed by that provision and (iii) if their complaints are within time and therefore properly before the Tribunal for investigation, whether or not the respondent discriminated against the complainants 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 them to the position of Senior Lecturer following a selection process in June, 2007. 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 The first issue for decision by me is whether or not the complaints are validly before the Tribunal for investigation - i.e. whether or not the complaints were referred to the Tribunal in accordance with the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2007. Section 77(5)(a) requires, in the first instance, that a complainant refer his/her complaint to this Tribunal within six months of the most recent occurrence of the alleged discrimination. Section 77(5)(b) of the Acts provides that the period within which a complainant must refer a complaint to this Tribunal can be extended to a maximum period of twelve months from the date of the most recent occurrence of the alleged discrimination, where the complainant can show "reasonable cause" for the delay. The complainants, in the first instance, argue that their complaints were referred to the Tribunal in accordance with section 77(5)(a) of the Acts. They base this argument on the assertion that the most recent occurrence of the alleged discrimination of them took place on 21 May, 2008 when the parties agreed, in the course of a meeting on that date, that the local mechanisms utilised to resolve the dispute had been exhausted. The complainants further argue, in the alternative, that the circumstances of their cases constitute "reasonable cause" in terms of section 77(5)(b) of the Acts in that by engaging with the respondent at local level to resolve the dispute - by having the original decision not to appoint them to the position of Senior Lecturer overturned - was a reasonable position to adopt and that any action on their part to refer the matter to an independent third party would have been premature once the possibility of resolution at local level existed. The respondent rejects the arguments on both issues. On the first point it contends that the date of discrimination, if one existed, must be 18-19 June, 2007 when the Assessment Board made its decision. As regards the second issue the respondent submits that the reasons given by the complainants for the delay in referring their complaints to this Tribunal do not constitute "reasonable cause" in terms of section 77(5)(b) of the Act and relies on the Labour Court Decision in Cementation Skanska v Tom Carroll in this regard.
5.3 From the evidence presented by the parties in the course of my investigation it is clear that the original decision of the Assessment Board was made on 18-19 June, 2007. It is also clear that the complainants were formally notified (verbally) on 27 June, 2007 and (in writing) on 17 August, 2007 that they were unsuccessful. In addition, in the course of the Hearing they stated that they considered themselves to have been the victims of age discrimination at that point, although they were not aware until early October, 2007 that a younger colleague in the Irish Department had been promoted. It was open to them at any time from 27 June, 2007 onwards to refer a complaint to this Tribunal but they did not do so until 16 June, 2008. Consequently, if any of these dates constitutes the most recent occurrence of any alleged discrimination of them, it is clear that their complaints were referred outside of the six month timelimit prescribed at section 77(5)(a) of the Acts and they must therefore demonstrate "reasonable cause" to avail of the extension of time provided at section 77(5)(b) of the Acts. However, that is not the end of things. The complainants sought a review of the original decision not to promote them and after extensive correspondence and discussion between the parties the respondent's Governing Body established a Sub-Committee to review the issue.
5.4 In Gillen v Department of Health and Children the Labour Court held that separate acts "can be considered as separate manifestations of the same disposition to discriminate". In Cast v Croyden College the UK Court of Appeal held that "a decision in response to the repetition of an earlier request might amount to a new act of discrimination, even if made on the same facts, where it resulted from a new consideration of the request". In the course of the Hearing Ms. X, who was solely responsible for the arrangements/documentation connected with the selection process, confirmed that she issued the members of the Sub-Committee with the applications of the three complainants, along with the results they received, a copy of the scoring matrix used by the original Assessment Board and the Policies and Procedures governing the selection process following the Governing Body's meeting on 13 February, 2008. I am therefore satisfied, on balance, that the Sub-Committee reconsidered, in full, the merits of the complainants' applications. The Sub-Committee issued it decision, re-affirming the Assessment Board's original decision, to the complainants on 27 February, 2008. In the circumstances I find that the actions of the Sub-Committee constitute the most recent act of any alleged discriminatory treatment of the complainants. They referred the complaints on 16 June, 2008, which is within the six months timelimit prescribed at section 77(5)(a) of the Employment Equality Acts, 1998-2007 and their complaints are therefore validly before the Tribunal for investigation.
5.5 Whilst there is no need to deal with the arguments in respect of "reasonable cause" under section 77(5)(b) of the Acts, in the interests of clarity I would make the following comments. Firstly, I do not accept the complainants' assertion that the timelimits only commenced on 21 May, 2008 - the date on which the local mechanisms used to attempt resolve the disputes ceased. It is the established jurisprudence in Ireland that knowledge or awareness on the part of a complainant, the discoverability of a material fact or the absence of a legal precedent are factors which do not prevent a statutory timelimit from commencing. In the circumstances, it would have been prudent for the complainants to refer their complaints to this Tribunal at an early date and allow any local discussion to run concurrently. Secondly, it would have been unlikely that the circumstances outlined by the complainants for the delay in referring their complaints to the Tribunal would have been held to be "reasonable cause" in terms of section 77(5)(b) of the Acts. In Cementation Skanska v Tom Carroll the Labour Court addressed the issue of "reasonable cause" in terms of the Organisation of Working Time Act, 1997. However, the rationale adopted by the Court in that case would have been applicable to the instant case. The Court stated that in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and affords a justifiable excuse it. Such an approach is entirely consistent with that approved by Laffoy J in Minister for Finance v CPSU, PSEU and IMPACT and if the tests established in those cases are applied to the instant case it is difficult to see how the complainants would have discharged that onus required of them.
5.6 I shall now deal with the substantive aspects of the complainants' claims - that they were treated less favourably by the respondent on grounds of age contrary to the Employment Equality Acts, 1998-2007. Section 85A of those Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that they 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 complainants do not discharge the initial probative burden required their complaints cannot succeed. The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. It is well established 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 well established that it remains for this Tribunal to decide, where the primary facts as alleged are proven, if the 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 be drawn from those facts.
5.7 The complainants assert that they were better qualified for promotion to the position of Senior Lecturer than Mr. A - a colleague from the Irish Department. I have examined the application forms submitted by each of the three complainants and the comparator as part of the selection process. From perusal of these documents I am satisfied that at the time of the impugned process the complainants each had twenty-eight years' service with the respondent at the grade of Lecturer whereas Mr. A had just over nine years' service at that level. In addition, each of the complainants had (i) a significantly higher level of publications (ii) supervised a significantly higher number of Masters Students that the comparator and (iii) a broader range of teaching activities (internal and external) than him. At the time of the impugned selection process Mr. MacCába was 60 years' old, Mr. Ó'Coigligh was 54 years' old and Mr. MacGearailt was 53 years' old. The comparator was 42 years' old.
5.8 The respondent produced the ages of all forty candidates who applied for the positions at the time. Fifteen candidates were promoted on foot of the selection process. I have examined this data and the following facts emerge. In relation to Mr. MacCaba, who was 60 years' old at the relevant time, two of the successful candidates were older than him and one was the same age. In addition, one of the unsuccessful candidates was older than him and one was the same age. In relation to Mr. Ó'Coigligh, who was 54 years' old at the relevant time, seven successful candidates were older than him and one was the same age as him. In addition, five of the unsuccessful candidates were older than him and two were the same age. In relation to Mr. MacGearailt was 53 years' old at the relevant time eight older candidates were successful and eight of the unsuccessful candidates were also older than him. When the data for the Humanities Faculty are examined - which is the complainants' faculty - one of the successful candidates was the same age as Mr. MacCaba and another was 55 years' of age, which is older than either of the other two complainants. It is submitted on behalf of the complainants that a statistical rebuttal of a claim of discrimination is an unsound one. It is well established that statistical evidence must be approached with a degree of caution and that it is a matter for this Tribunal (and the Labour Court) to assess whether or not it may take such statistics into account and whether or not they illustrate purely fortuitous or short-term phenomena and whether or not, in general, they are significant. I have given careful consideration to this issue and I am satisfied that the data submitted by the respondent is material which I can take into account in my deliberations. In Dyflin Publications v Ivana Spasic the Labour Court, in adopting the approach of Mummery LJ in Madarassy v Normura International plc stated that "the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the Court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant". I have carefully considered the totality of the evidence submitted by both parties on this issue and I am satisfied, on balance, that the respondent has established that the age of candidates was not a factor which influenced the outcome of the selection process. It follows therefore that the complainants have failed to establish a prima facie case of discrimination and their complaints cannot succeed.
5.9 Whilst my decision in the previous paragraph disposes of the complaints, a number of issues were raised by the complainants in the course of my investigation which, in the interests of completeness, I feel it necessary to address. It is well established that in considering the question of whether or not a complainant has been discriminated against in respect of appointment to a particular post, it is not for this Tribunal to form any view on the merits of the complainant or his/her suitability for appointment, rather it is to determine whether or not the respondent's decision was tainted by unlawful discrimination on the ground advanced. In the instant case it is agreed by both parties that the format of the selection process was the subject of discussion between the respondent and the complainants' trade union prior to the process commencing and that both parties were as Mr. Jennings (IFUT) stated "happy" with the outcome of those discussions. In those circumstances I consider it reasonable that the respondent can rely on the agreement reached with IFUT. The selection process for merit positions did not include an interview and the complainants take issue with that. The also take issue with the fact that the process did not provide for candidates to be observed in an actual teaching situation/environment. In HSE v A Worker the Labour Court held that "the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case" provided the qualifications and/or criteria are not indirectly discriminatory on any of the proscribed grounds. I am satisfied that the principle established by the Labour Court can apply equally to the mechanisms which comprise the selection process. The complainants have failed to show how the failure of the respondent to include either of the aforementioned elements in the selection process constitutes less favourable treatment of them on grounds of age and I find therefore that this aspect of their argument is without merit.
5.10 The candidates were assessed across three pre-determined criteria. These criteria were advised to candidates and they were requested to provide evidence of their achievements/experience on each of these competencies. Candidates were also entitled to select the three publications regarded by the candidate as the most significant to his/her candidacy and furnish the names of three eminent referees - one internal and two external in support of their candidacy. The Assessment Board included two eminent Academics from DCU and two other eminent Academics external to the respondent College or DCU - one from St. Mary's University College, Belfast and the other form NUI Maynooth. The complainants, in the first instance, assert that there was insufficient knowledge and expertise amongst the members of the Assessment Board - in particular knowledge and expertise in their own discipline, Irish - to enable them adequate assess their applications adding that because of this lacuna the External Members of the Assessment Board were open to being influenced and manipulated by the Internal Members. However, the complainants adduced no evidence whatsoever to support this assertion. In Melbury Developments v Arturs Valpetters the Labour Court held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule". Accordingly, the complainants' arguments on this point are rejected.
5.11 The respondent accepts that it extended the membership of the Assessment Board to six persons without recourse to the candidates. The complainants assert that this is contrary to the respondent's Policy and Procedures for the competition and undermines the probity of the process. The respondent states that this decision was taken by the respondent SMT when it emerged that a large number of candidates had applied for the posts and that the decision was taken without sight of any personal details of those candidates. Whilst departure from the stated process is a practice which generally should be avoided, I accept the respondent's explanation in this instance. Moreover, the departure applied to all candidates and the complainants have failed to adduce any evidence as to how it amounts to discrimination of them on grounds of age. The complainants also state that the respondent failed to retain any notes of the deliberations around the selection process and submit that this failure is fatal to the respondent's arguments that they were not discriminated against. The respondent confirmed that no formal notes of the deliberations of the Assessment Board were made. It submits that the Assessment Board was not engaged in a formal interview process and therefore it was not necessary to make notes. Both this Tribunal and the Labour Court have on many previous occasions been critical of employers for failing to retain interview notes. However, such a failure does not, of itself, give rise to an inference of discrimination. In the instant case both the President of the College and Ms. B, who were both members of the Assessment Board, gave evidence at the Hearing independently of each other, of the procedure and discussions at the assessment process,. They gave their evidence in a forthright and consistent manner. In the circumstances I accept their evidence as an accurate account of the process of deliberation. However, I do not accept the respondent's argument that as the selection process was not interview based there was no need to make and retain notes. Both this Tribunal and the Labour Court have previously commented on the great assistance such notes are when investigating claims of discrimination. Consequently, I recommend that the respondent adopt a practice of making records of the discussions of the Assessment Board in this type of selection process. I note that it appears to be the respondent's practice to destroy interview notes immediately after the interviews conclude. I recommend that this practice cease immediately, if it has not already done so, and that notes of all competitions - interview based or other wise - are retained for a period of twelve months after the competition concludes.
5.12 The complainants assert that assert several of the successful candidates had a mutual association in the field of history with the President of the College and given this "close personal relationship" he should have exercised his option under the College's Instrument of Government to step down for the Assessment Board and nominate someone else to replace him. The President states that he knew all of the candidates to varying degrees as a result of the long period of his employment with the respondent and the nature of his duties over that period and adds that he considers such a proposition to be a dereliction of his duty. In essence, the complainants are contending that the presence of the President on the Assessment Board gave rise to a bias towards them - i.e. the nemo iudex in causa sua rule. In Mooney v An Post Keane J emphasised that imprecise nature of this rule when he held "that the requirement cannot be literally applied to every employer confronted with a decision as to whether or not to dismiss a particular employee. If it were an employer could never dismiss an employee since he would also be an interested party in the decision". The principle expressed by Keane J is, in my view, applicable to the instant case. It is clear from the Policy and Procedures governing the selection process that the President is permitted to sit on the Assessment Board. I accept the argument advanced by the respondent that it is common for such high ranking officials in the sector to participate on such Boards/Panels and in the circumstances see no valid reason why the President should have absented himself from the Board. Moreover, the complainants have not adduced any evidence that the participation of the President on the Board gave rise to less favourable treatment of them contrary to the Acts. I find therefore that this aspect of their complaints is not well founded.
5.13 It is common case that candidates were assessed across three pre-determined criteria which were advised to the parties in advance of the selection process. Indeed candidates were required to complete their applications forms detailing their achievements/experience across these criteria. On the basis of the evidence adduced by the respondent in the course of my investigation I am satisfied that members of the Assessment Board were also provided, in advance of meeting on 18-19 June, 2007, with Assessment Guidelines which set out details of the factors which needed to be present in determining what score (between 1-6 marks, 1 denoting under-performance and 6 exceptional performance) to award candidates across each of the three criteria. I am also satisfied that the Board members received copies of all documentation in respect of each of the candidates between 2/3 weeks before the Board met. The complainants assert that this period is too short to enable the Board critically evaluate the applications and whilst I accept this as a plausible proposition, the impact of any such shortcoming applies equally to all candidates and cannot, in my view, give rise to an inference of discrimination on grounds of age on behalf of the complainants. In light of my comments in this and the preceding paragraphs I am satisfied that the selection process was conducted in a fair and transparent manner and whilst it may have contained some shortcomings, these are not sufficient to support the proposition that the process was tainted by age discrimination.
5.14 The complainants contend that the review process which they engaged in at local level in an effort to resolve the dispute was entirely inadequate and did not fully address their concerns. They add that, in particular, it deprived them the right to a Hearing by the Sub-Committee, which is the least they expected having invoked the process and was therefore a further incident of discrimination. The respondent rejects this assertion. From the evidence adduced by the parties I am satisfied that the respondent's Governing Body referred the matter to a Sub-Committee at its meeting in early February, 2008 and that it was entitled to do so in accordance with Article 35 of the Instrument of Government of the College. I am further satisfied that this Sub-Committee discharged its functions in an appropriate manner. The complainants take issue with the fact that they were not afforded a formal Hearing at which they would have been able to air their grievances. No such mechanism is mentioned in either the Policy and Procedures governing the selection process or the Instrument of Government of the College. I find therefore that the complainants were not treated less favourably in this aspect of the process.
6. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of these complaints and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that the complainants have failed to establish a prima facie case of discrimination 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 them to the position of Senior Lecturer following the section process in June, 2007 and their complaints fail.
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Vivian Jackson
Equality Officer
21 June, 2011