EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-018
PARTIES
Barry Sheehan
(Represented by John Curran BL instructed by Charles C. Daly & Co. Solicitors)
v
University College Cork/National University of Ireland Cork
(Represented by Ronan Daly Jermyn Solicitors)
File Reference: EE/2009/223
Date of Issue: 20 February 2012
1. Dispute
This dispute involves a claim by Mr Barry Sheehan (hereinafter "the complainant") that he was discriminated against by University College Cork/National University of Ireland Cork (hereinafter "the respondent") on grounds of gender within the meaning of sections 6 (1) (a) and 6 (2) (a) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment or promotion or re-grading contrary to sections 8 (1) (a) or (d) and/or 8 (5) of the Acts when he was not shortlisted for interview for the position of Clinical Education Co-ordinator. The complainant also raised a complaint of victimisation within the meaning of section 74(2) of the Acts.
2. Background
The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 6 April 2009 enclosing a written submission. A written submission was received from the respondent on 2 October 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 10 June 2011. The complainant and respondent made further written submissions on the day of the hearing. Under section 95 (1) (a) of the Acts, I required the respondent to furnish certain documents to me. The hearing was resumed on 26 and 27 September 2011. Supplemental Legal Submissions on behalf of the Complainant were received on 26 September 2011 and on behalf of the respondent on 28 September 2011. Further Supplemental Legal Submissions were received on 4 October 2011.
3. Summary of complainant's case
In September 2008, the respondent advertised on its website and in a national newspaper the permanent full-time position of Clinical Education Coordinator with the Faculty of Law, University College Cork. The salary scale ranged from € 58,948 to € 76,169 depending on qualifications and experience.
On 24 September 2008 the complainant applied for the post. By letter dated 22 October 2008 he was informed by the respondent's Department of Human Resources that he had not been shortlisted for interview. The following day the complainant sought the reason or reasons why he had not been shortlisted. He was informed by email dated 30 October 2008 that the sole reason why he had not been shortlisted was that his application form showed "insufficient experience relevant to shortlisted candidates".
The background to the competition is as follows.
The previous post-holder, Mr Gerard Murphy, held the post from 2004 until 16 August 2008 when he resigned to follow another career in Dublin. Mr Murphy had given the respondent one month's notice in July 2008. On 16 August 2008, Ms Applebe was appointed as de facto post holder without a competition. On 5 September 2008 the permanent full-time post was advertised. It set out six selection criteria for the post:
1. A postgraduate qualification in law.
2. Demonstrable research capacity and/or publication record an advantage.
3. Organisational skills.
4. Excellent communication skills.
5. Ability to operate in a confidential and sensitive environment.
6. Familiarity with the legal professions and institutions.
On 9 September 2008, Prof. Caroline Fennell, Head of Law Faculty wrote to stakeholders informing them that "this year we have some staff changes...Ms Applebe will fulfill the role of Clinical Education Coordinator. Ms Applebe will be making contact with you shortly and is looking forward to working with you in providing this year's LL.M. criminal justice students with an equally engaging and insightful experience."
The HR Department at the respondent, at the suggestion of the Head of the Law Faculty nominated 4 female and 1 male members to the selection committee, as follows:-
- Prof. Caroline Fennell Head of Law Faculty (chair) (female)
- Dr Mary Donnelly, senior lecturer in Law UCC (female)
- Dr Ciaran McCullagh, senior lecturer in sociology UCC (male)
- Dr Liz Heffernan, at School of Law TCD (female)
- Ms Eilis Caffrey, HR administrator UCC (female).
22 applications were received, 15 female and 7 male.
In accordance with UCC's own procedures, the internal members (i.e. excluding Dr Heffernan) met to shortlist the applications on 16 October 2008.
The following additional selection criteria were added to those advertised at the short-listing meeting:
"Lecturing examining and supervision of clinical programmes. Ability to supervise certain aspects of students' work at both undergraduate and postgraduate level."
7 candidates were shortlisted, 5 female (including Ms Applebe) and 2 male. The complainant was not shortlisted. The report of the short-listing committee gave all 14 unsuccessful candidates the same reason for not being shortlisted i.e. "insufficient experience relevant to shortlisted candidates." No marks were recorded for the candidates at short-listing.
On 22 October 2008 the respondent informed the complainant that he had not been shortlisted for the position. The following day the complainant wrote to the respondent looking for reasons and seeking information concerning the applicable appeal procedure. On the same day, HR wrote to the Head of the Law Faculty and other referees seeking a reference for Ms Applebe. The Head of the Faculty (and chair of the selection board) submitted a glowing reference stating that she had "no hesitation in giving her the highest possible recommendation for appointment to the permanent post of Clinical Education Coordinator." Her other referees gave her very favourable references also.
On 24 October 2008, Ms Applebe was listed on the Law Faculty website as Clinical Education Coordinator, although interviews of the shortlisted candidates had not yet taken place. Two days later this was taken down and the name of the previous post holder, Mr Murphy was re-listed. On 3 November 2008, Ms Applebe was again listed on the website as Clinical Education Coordinator although interviews had still not taken place.
The respondent informed the complainant on 30 October 2008 of the reason he was not shortlisted i.e. "insufficient experience relevant to shortlisted candidates." He was also told that there was no appeal mechanism after short-listing. The selection committee decision was final.
On 7 November 2008 the short-list was interviewed. The result of the interview process was as follows:
Ranking Score Gender
1st Ms Applebe 91 Female
2nd 90 Male
3rd 67 Female
4th 63 Female
5th 62 Female
Unappointable Male
Unappointable Female
The interview board recommended Ms Applebe's appointment as "the candidate [who] demonstrated the closest fit particularly in the area of providing administrative and academic support to the Clinical Programmes in the undergraduate and postgraduate law programmes."
On 11 November 2008 HR wrote to Ms Applebe confirming her appointment.
The complainant argues that the respondent breached its own recruitment and equality guidelines in the following respects:
1. By failing to achieve gender balance on the selection and interview board.
2. By adding supplementary selection criteria which conferred an unfair advantage to the successful candidate.
3. By failing to establish and maintain appropriate mechanisms whereby job applicants who feel they have been unfairly treated can have their complaints investigated.
The complainant alleges that the respondent has a practice of appointing females to posts in preference to males. He points to the following data as evidence:
In the 10 years until 1 March 2009, 83% of all appointees to administrative/non-academic posts in the Department of Law were female and 17% were male. As of July 2009, 100% of administrative/non-academic posts, including that of Clinical Education Coordinator, were female. As of June 2011, in spite of 3 new posts being created in the interim, the situation was unchanged.
The complainant claims that there was no urgency which required the appointment of Ms Applebe on an interim basis in August 2008. This gave her an unfair advantage in the competition for the permanent post. The post could have been kept open until the outcome of the selection process. The complainant claims that he was better qualified than most if not all of those who were shortlisted because of his demonstrable knowledge of the Irish legal system and ability to network with solicitor and barrister colleagues. As well as his practice and teaching experience, he is the editor of the consolidated District Court rules. Three of those shortlisted were not Irish or experienced in Irish law. Others were not practising lawyers. The decision not to shortlist him was manifestly irrational.
The complainant claims that the male candidate who was ranked second at the interview stage was an exceptionally strong candidate with years of experience who was internationally renowned as an expert in the subject. That he was ranked only second to a female PhD student is manifestly irrational. This raises the inference that the whole selection process, including the short-listing, was tainted with gender discrimination.
The complainant contends that the inference necessarily arises from the contents of this evidence that the decision to appoint a female to the post, and in particular Ms Applebe, had been taken by the respondents before it was ever advertised and such de facto appointment was merely confirmed by the respondent on foot of a recommendation of the selection committee in November 2008.
The complainant cites the Equality Tribunal case DEC-E2007-068 O'Conghaile -v- Mercy Mean Scoil Mhuire and argues that the failure to award and record marks at the short-listing which of itself may not be discriminatory, when coupled with the other factors listed above, may lead a court to infer that there has been discrimination.
In June 2011 the complainant raised a complaint of victimisatory dismissal in that his contract as part-time lecturer in law was not renewed after he sought to appeal against the respondent's failure to shortlist him. No reason was given for his dismissal.
The complainant claims that since he was an employee of the respondent at the time of the discrimination, he was in fact discriminated in promotion and not in access to employment as such. Therefore the redress he is seeking is compensation of two years' salary plus interest and the re-advertising of the post.
The complainant also cited the following cases:
UCD v Rath [Labour Court EDA119]
McCarthy v Cork City Council [Labour Court EDA0821]
Wallace v South Eastern Education and Library Board [1980] IRLR 193
O'Halloran v Galway City Partnership [Labour Court EDA077]
Kathleen Moore Walsh v WIT [Labour Court EDA056]
Portroe Stevedores v Nevins [Labour Court EDA051]
4. Summary of respondent's case
The respondents raised the following preliminary points:
1. The complainant does not have locus standi to challenge the interview process since he was not shortlisted for interview. His claim of discrimination must be confined to the short-listing process.
2. The complainant first raised the allegation of victimisation in June 2011, which was more than 12 months after the alleged incident. It is out of time and the Equality Tribunal have no jurisdiction to hear the complaint of victimisation.
The respondent denies that it discriminated against the complainant. At no stage in this process was the gender of applicants a consideration. It is of note that the sole previous occupant of the Post was male. The respondent points to the statistics of applications:
Male Female Total
Number of applicants 7 15 22
Number shortlisted 2 5 7
10 females and 5 males were not shortlisted. There is no significant difference in the success rate of females (33%) compared with males (29%).
The respondent submitted that there is no objective evidence to support a conclusion that the selection process was driven by gender issues and not by reference to the selection criteria and Appointment Procedures. The respondent operated a transparent selection process in accordance with its own Appointment Procedures and assessing each candidate on their own merits and in relation the stated criteria for the position. The selection Committee had both male and female members. The selection process was carried out in a structured, objective, non-biased manner which, at no stage, involved any considerations of gender. The complainant has not discharged the onus of proving facts from which discrimination may be inferred and has failed to raise a prima facie case of discrimination on grounds of gender.
The respondent does not accept that the complainant was an employee at the time of the alleged discrimination. He was employed as a part-time evening Assistant Lecturer in constitutional law for a fixed term 24 September 2007 to 26 September 2008. That role was fundamentally different to the Post competed for. The respondent is obliged under law to advertise permanent administrative posts at this level externally. All potential candidates, whether internal or external, were obliged to apply in the same manner and in accordance with the respondent's Appointment procedures. Moreover there is no process which provides for re-grading or promotion from teaching posts to administrative posts.
The respondent cited the following cases:
A Worker v Mid Western Health Board [1996] ELR 1
Mitchell v Southern Health Board [2001] ELR 201
Rescon Limited v Scanlan Labour Court EDA 085/2008
John Cotter v County Limerick VEC Labour Court EDA0910
Dublin Institute of Technology v A Worker Labour Court DEE-094
Tesco Ireland v Kirwan Labour Court DEE 041/2004
Rabbitt v Health Service Executive (Dublin/Mid-Leinster Region) DEC-E2008-064
4. Conclusions
At the hearings I heard evidence from the following witnesses: Mr Gerard Murphy, the complainant, Ms Anne Gannon (the recruitment manager HR Division), Prof. Caroline Fennell and Dr Mary Donnelly.
In coming to these conclusions I have taken account of all the evidence, written and oral, presented to me.
I shall first deal with the preliminary points raised by the respondent. I find that the complainant does not have locus standi to challenge the outcome of the interview process undertaken by the shortlisted candidates since he was not one of them. Therefore I come to no conclusion about the fairness of that process.
As regards the contention of the respondent that the claim of victimisatory dismissal is out of time, the complainant argues that I ought to follow the precedent in the case of County Louth VEC v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 and permit him to amend the claim to encompass the claim of victimisation. I disagree with the complainant in that the facts in the present case are completely different to those in the case cited. In Brannigan, the question was whether or not the case could be expanded to include earlier instances of the same discrimination. In the present case the complainant seeks to introduce an entirely new element, that of victimisation. Victimisation is not a continuation of ongoing discrimination. This new claim of victimisation introduced in June 2011 relates to events alleged to have happened in early November 2008 and is clearly out of time.
Turning to the claim of discrimination in appointment, the applicable law was usefully summarised by the Labour Court in University College Dublin v Rath [EDA119] where it stated:
"It is well settled that for the purpose of establishing unlawful discrimination the ground relied upon, in this case age, need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision (See dictum of Peter Gibson LJ to that effect in Wong v Igen Ltd and others IRLR 258). Hence, in every case involving a claim of discrimination the factors which influenced the Respondent in treating the Complainant as it did is a crucial consideration.
Section 85A of the Act provides for the allocation of the probative burden as between the parties. This section provides that where a complainant establishes facts from which discrimination may be inferred it is for the Respondent to prove that the principle of equal treatment was not infringed. Where the burden of proof rests with the Respondent by operation of this provision it must be shown that the impugned decision was in no sense whatsoever influenced by the discriminatory ground relied upon.
The type or range of facts which may be relied upon by a complainant to shift the probative burden can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking 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 proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the Determination of this Court in Determination EDA082, Kieran McCarthy v Cork City Council.)
"While there is no closed category or range of facts that can be relied upon some guidance can be obtained from the authorities as to what may be sufficient to shift the probative burden. The Decision of the Northern Ireland Court of Appeal in Wallace v. South Eastern Education and Library Board [1980] NI 38 [1980] IRLR 193 is authority for the proposition that where a well qualified woman is passed over for promotion in favour of a less qualified man, an inference of discrimination should be drawn. That general principle is equally applicable where other discriminatory grounds are relied upon.
However in applying that principle it is for the Complainant to prove as a fact that he or she was better qualified (or in this case equally qualified) relative to the successful candidates. Moreover, the qualifications or criteria which is to be expected of candidates, and the evaluation of candidates against that criteria, is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better or equally qualified against the chosen criteria that an inference of discrimination could arise (see Determination EDA077 Galway City Partnership and O'Halloran). Hence, in cases such as the present case, the focus of the Court's enquiry is to ensure that the selection process was properly conducted and that the result was supported by the material before the decision makers.
Statistics can be relied upon to establish a prima facie case of discrimination. However, in Enderby v Frenchay Health Authority and the Secretary of State for Health [1993] ECR 5535 the ECJ (as it then was) pointed out that it is for the national court to assess whether it may take into account the statistics relied upon and whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant.
Finally, in Nevins, Murphy Flood v Portroe Stevedores [2005] 16 ELR 282 this Court pointed out that the in considering cases in which discrimination is alleged the tribunal of fact must be alert to the possibility of subconscious prejudice on the part of a decision maker. The Court said: -
"Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution..."
Looking at the short-listing process, contrary to the assertions of the respondent, I believe from the evidence presented to me that the process was flawed in several respects.
1. There was no marking scheme agreed in advance and no marks were recorded.
2. There was no clear distinction between essential and desirable selection criteria.
3. The criteria were amended significantly after the closing date for applications, giving applicants no opportunity to show how they measured up to those additional criteria.
4. There was a conflict of interest in that the Chair of the Selection Committee had been named as a referee by a candidate and asked for a reference.
5. Certain criteria which were unstated appear to have influenced the short-listing process, for example a preference for those with experience in non-governmental organisations.
The question that must be answered is, do these flaws amount to primary facts of sufficient significance to raise a presumption of gender discrimination. The burden on the complainant in this case is increased because the statistical evidence regarding the short-listing process does not support a claim of gender discrimination. Female candidates were not disproportionately successful. The complainant argues that there was a decision to appoint a female to the post, and in particular Ms Applebe, had been taken by the respondents before it was ever advertised. Certainly the flaws identified above favoured Ms Applebe. However, they also favoured the two male shortlisted candidates. In my view they don't appear to favour women applicants in general over male applicants. Favouring one applicant, who happened to be female over other applicants (male and female), is not gender discrimination.
In Dublin Institute of Technology v A Worker DEE-094 the Labour Court held:
"It is not the responsibility for the Equality Officer or this Court to decide who is the most meritorious candidate for a position. The function of the Court is to determine whether the sex or marital status of the complainant or the appointee influenced the decision of the board."
In John Cotter v County Limerick VEC Labour Court EDA0910, the Court found that
"in the absence of clear evidence of manifest irrationality in the result, the Court will not seek to undertake its own assessment of the candidates or substitute its views on their relative merits for those arrived at by the interview board."
The complainant claims that the selection of most of the shortlisted candidates provides clear evidence of manifest irrationality. The test for this, as cited by the complainant, is as laid down in State (Keegan) v Stardust Victims' Compensation Tribunal [1986] I.R. 642 at p. 658:
I would consider that the test of unreasonableness or irrationality ... lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.
I have examined closely the complainant's application form and those of the shortlisted candidates. I consider that the complainant has an arguable case that his application ought to have been considered ahead of one or two (male and female) applications that were shortlisted. However, I don't consider these decisions to be manifestly irrational. They are rational when seen from the perspective of the Chair of the selection committee. The Chair, in oral evidence stated that she saw Clinical Legal Education as being placed in the interface between law in books and the law in the real world, in the gap between law as it is and law as it should be. Someone who sees Clinical Legal Education as embodying a critique of law as it is practised may favour someone with a research or a NGO background over someone with a practitioner background.
In conclusion, I consider that the complainant has failed to establish a prima facie case of gender discrimination.
5. Decision
Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that:
1. The respondent did not discriminate against the complainant on the gender ground pursuant to sections 6 (1) (a) and 6 (2) (a) of the Employment Equality Acts, 1998 - 2008 in relation to access to employment or promotion or re-grading contrary to sections 8 (1) (a) or (d) and/or 8 (5) of the Acts.
2. I do not have jurisdiction to investigate the complainant's claim of victimization.
Therefore the complainant's case fails.
Niall McCutcheon
Director
20 February 2012.