DEC-E2012-019- Full Case Report

The Equality Tribunal

Employment Equality Acts 2000 to 2008

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-019

Parties

Eleanor O'Higgins
(Represented by Ms. Mary-Paula Guinness BL on the instructions of Eversheds O'Donnell Sweeeney solicitors)

V

University College Dublin
(Represented by Irish Business Employers Confederation)

File No. EE/2008/400

Date of Issue: 21 February

Keywords:
Employment Equality Acts - Discriminatory treatment - Promotion/re-grading- Gender - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by Dr. Eleanor O'Higgins (hereafter "the complainant") that she was subjected to discriminatory treatment in relation to promotion/re-grading by University College Dublin (hereafter "the respondent") on the ground of her gender. The complainant's application for Professor was turned down during the 2007 round of promotions. The complainant submitted that a previous competition round in 2006, starting with the lead up to it, was the beginning of the on-going gender discrimination.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 14 April 2008 under the Employment Equality Acts. On 4 October 2010, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 30 May 2011. A previous hearing scheduled for 11 April 2011 was adjourned in exceptional circumstances. Disclosure of certain materials was agreed at the hearing and parties were given time to reply to same. This exchange of correspondence was concluded on 22 December 2011.

2. Case for the complainant

2.1. The complainant is a Senior Lecturer in the School of Business, College of Business and Law, University College of Dublin. Since 1993, she has specialised in business ethics, corporate governance, corporate social responsibility and strategic management.

2.2. The complainant submitted that she was discriminated against on the gender ground when she applied to be promoted to Professor in 2007. The complainant had also sough promotion to Professor in 2006 but she had been informed that applicants must normally be at Associate Professor level for at least five years on the closing date for applications before they will be considered for promotion to Professor (section 4.1. of the Procedures for Promotion to Professor). In exceptional circumstances, set out in the written rules, a College Principal can make a case for earlier consideration. During the 2006 round two male comparators with inferior publication records than those of the complainant were promoted to Professor.

2.3. The complainant submitted that the fact that she was not promoted to Associate Professor in 2006 was used against her during the Professor promotion round of 2007 as she claimed that she was told by a named Professor that persons applying for promotion were expected to go from one level to the next. The complainant maintained that there has been consistent and ongoing discrimination against her on the ground of her gender.

2.4. The promotion criteria for Professor are set by the respondent under four headings:

(1) Research and Scholarship;
(2) Academic Leadership;
(3) Teaching and Learning; and
(4) Contribution to the University and the wider community.

The complainant submitted that the first two conditions are especially crucial. The complainant submitted that the assessment of these conditions is supposed to be merit based but that a proper review will reveal that the complainant's achievements were not properly assessed by the respondent. The complainant was clearly and strongly recommended for promotion to Professor by an external referee and three external assessors. The complainant submitted that despite this, the selection committee failed, neglected or refused to take into account these unanimous views and the evidence of the international experts. The complainant submitted that four of her male fellow colleagues from the College of Business and Law - whose achievements do not exceed hers, and in some important instances, are inferior to hers - were promoted to Professor. The complainant submitted that this is evidence of that there is a bias and discrimination against her.

2.5. The complainant questioned the competence of the University Committee on Academic Appointments, Tenure and Promotion (hereafter "UCAATP") and submitted that the above committee's competence, bona fides and composition is discriminatory. The complainant relied on the following points:

1. The UCAATP is unbalanced in terms of competence and gender balance. It did not have the expertise to evaluate her achievements in her professional area (notwithstanding the personal distinction of a named extern. His expertise is nevertheless limited in the complainant's speciality) as the UCAATP is heavily influenced by representatives of the Life Sciences and Engineering schools (schools that are male dominated) and contains only 2 women;

2. The UCAATP composition does not properly reflect the respondent's staff community in academic terms and is particularly prejudiced against the School of Business who has no representation on the UCAATP. This lack of 'spot on' expertise in relation to her area of speciality is sufficient to raise an inference of discrimination (DCU v Horgan No. EDA0715); and

3. The UCAATP imposed an additional de facto condition on the complainant. She claims that she was informed that she could not be promoted to professor until she had completed a period as an associate professor. This unwarranted condition, she maintains, means that the UCAATP was not approaching her application in 2007 with an objective and open attitude.

2.5. The complainant argued that the UCAATP ignored the complainant's own College Committee's recommendations, the three external assessors' and her referee's recommendations for her appointment to full Professor and chose to refer to five alleged shortcomings relied upon for her not to be promoted to Professor. She does acknowledge that the assessments of her male comparators were positive also.

2.6. It was submitted that the respondent's feedback report lacks transparency because:

1. It is not clear why 5 specific points were chosen when 4 criteria (above) are clearly stated. The complainant maintains that while there are examples of achievements for the four criteria, there is no exhaustive list and that it is explicitly stated that candidates are not expected to match all these suggestive examples;

2. The UCAATP has arbitrarily chosen what are supposed to be possible examples under the four broad criteria in the published procedures and chosen to treat them if they were compulsory requirements while simultaneously ignoring other examples given in the written procedures;

3. The UCAATP report is non-transparent in explaining why the complainant is unable to meet the standards of the arbitrarily selected examples. The complainant refuted all of the allegations of shortcomings that the UCAATP found in her case and argued that the fact that a need for such a rebuttal arises in the circumstances of this case if further evidence of the UCAATP's failure to fully understand the complainant's area of expertise and achievements and because the respondent has a bias against the complainant's gender; and

4. The complainant questions how a vaguely stated 60 word report could be described as providing clearly outlined reasons for why she was not promoted. The complainant maintains that the report does not substantiate any of it claims.

2.6. The complainant argued that the fact that the UCAATP itself attempts to interpret the various reports about applicants to identify distinction among the applicants leaves the process open to subjective prejudice. This subjectivity and openness to unfair discrimination was also present in the promotion round of 2006 when the complainant had asked named Professors to explain what this distinction was. The professors, she claims, were unable to satisfactorily reply to this query. This contradicts the respondent's claims that it is implementing best international practise in promotions.

2.7. The complainant further argues that the gender composition of the UCAATP demonstrated gender imbalance and violates best practice, particularly in state funded organisations.

2.8. The complainant submitted that the UCAATP imposed inappropriate indicators to her application. These indicators are more appropriate to other academic areas. It was claimed that the respondent ought to have given weight to the complainant's output from Master's students rather than focusing on PhD students. Also, as the complainant works in the area of business ethics it is inappropriate to make funding a prerequisite for a professorship.

2.9. Furthermore, the complainant submitted that a male colleague, Mr D, who was promoted to Professorship through Competitive Retention Pathway, had much inferior qualifications and experience than her.

2.10. The complainant wishes to rely on statistic that show that 50% of the males who applied for promotion to Professor from the School of Business were promoted in 2007 whereas the percentage of women is 0% for the same year. In 2006 these statistics reveal that 100% of men and 0% of women in the complainant's School were promoted. The School of Business has a lower promotion rate of women that in the respondent university generally and, in the complainant's own area of speciality, the promotion rates are even lower. The complainant relied on Wallace v South Eastern Health Board [no citation provided] that states that it is sufficient to establish an inference of discrimination in circumstances where a successful candidate is a male but the better candidate is a woman. It was submitted that this is the case here.

2.11. The complainant also relied on Nevins et al v Portroe Stevedores [2005] 16 ELR 282 reminding the Tribunal of the possibility of unconscious discrimination. It was submitted that the fact that the respondent was not able to provide statistics indicating the gender breakdown of how many promotions were turned down by the UCAATP in circumstances where an individual College had made a recommendation for the promotion was further evidence of the respondent's reluctance to address gender discrimination.

3. Case for the respondent

3.1. The respondent is a university with 35 schools with over 20000 students. The grade of Professor is the highest academic grade in the respondent structure. Applicants will be considered for promotion to this grade when in the view of their peers and colleagues they have achieved in standards of academic distinction and outputs consistent with this grade. This is in stark contrast to the previous situation whereby a 'chair' had to become vacant before a person would be promoted to Professor.

3.2. The respondent submitted that the changes to the promotional process within the respondent organisation enacted since 2004 have ensured far greater opportunity for promotion to Senior Lecturer, Associate Professor and Professor than that existing before the current system when promotions were quota driven, rather than quality driven. This means that the system now allows for the promotion of all persons who meet a predetermined standard unlike the previous competitive or quota based system that limited the number of promotions possible in a given round.

3.3. The respondent has a written procedure governing promotions. The document relevant to this claim is entitled: "Promotion to Professor 2007 Internal Promotion Pathway (Pathway 4B)". The respondent denies in full any allegation of an application of discriminatory criteria in relation to its promotion pathways; lack of bona fides and competence. It was submitted that the complainant, along with other applicants, was assessed in a transparent manner. The various documents, including guidelines for assessment committee, minutes of assessment meetings and assessment records clearly show how applicants were assessed and decisions reached.

3.4. The respondent submitted that statistics from the promotion rounds support the respondent's position refuting the complainant's allegation of a gender bias. There were a higher number of female applicants who were promoted in both the 2006 and 2007 promotion rounds. There were 19 applicants for the Professor Promotion in 2007, 79% male, 21% female. 6 males and 2 females were recommended for promotion representing 40% of the male applicants and 50% of the female applicants. In relation to the complainant's School there were three applicants, two male and the complainant. One of these males was successful. In the 2006 round for promotion to Associate Professor there were 77 applicants, 56 male and 21 female. 61% and 67% respectively were recommended for promotion.

3.5. The complainant had also availed of the external appeals mechanism that had found no procedural defect in the application by the criteria of the Assessment Committees.

3.6. In relation to the 2006 promotion round. The Executive of the complainant's College considered the complainant's application to have the 5 year rule exempted. It gave reasons why the exemption was not granted and submitted that they considered the complainant's "cumulative impact" to be more in line at Associate Professor. It was submitted that 7 applicants applied for this exemption in 2006, 5 male and 2 female. One male and one female were granted the exemption. The respondent relied on these statistics to support its position that there were objective reasons why the complainant was not granted an exemption.

3.7. It was submitted that despite having been informed of the College of Law and Business's Executive's decision not to grant her an exemption of the five year rule, the complainant regardless submitted her application for Professor to the Promotions and Grading office. This is why she was informed by email on 27 January 2006 that she was not eligible for the Professor as she had not been granted an exemption. It was suggested that she apply for the post of Associate Professor instead.

3.8. Additional statistics were provided to the investigation at the behest of the complainant. The Statistics indicate that in the respondent's 2007 promotion round:

3.9. The respondent submitted that the complainant was not discriminated against on the grounds of gender in either the 2007 or 2006 promotion rounds and requested that the Tribunal reject the complainant's claim of discrimination.

4. Conclusion of the equality officer

4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of 'sufficient significance' before a prima facie case is established and the burden of proof shifts to the respondent. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that 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".

4.2. First, the issue of on-going discrimination and time limits as required by these Acts. It is clear that while these Acts do confer me the jurisdiction to extend an investigation beyond the 6 month time limit (12 months on direction of the Director or the Circuit Court) in circumstances where I am satisfied that there are facts supporting an inference of on-going discrimination/victimisation in accordance with section 77(5)(a). Therefore, in order for me to have jurisdiction to examine the promotion process in 2006 I must be satisfied that there are facts supporting an inference of discrimination in the competition in 2007. It is only when I am satisfied that the facts support a prima facie case surrounding the promotion process in 2007 that I have jurisdiction to examine the process in 2006. It ought to be clear that most promotion processes are often very clearly defined in time; they begin with a notice of such process and end with the communication of the result. I am satisfied that the promotion process complained of here is capable of being so understood.

4.3. It is also clear that for such an exercise to be relevant and appropriate the investigation can only focus on a given interview process at a time. It is not possible to bring comparators from an entirely different promotion process to the investigation. That is, I am entirely satisfied that one of the actual comparators the complainant was referring to during the investigation had to be excluded from the investigation as he was promoted through a 'Competitive Retention Pathway' and not through the process that the complainant applied for her promotion. Furthermore, the complainant's claim relates to a particular gender discrimination that she claimed exists in the College of Law and Business. She submitted that 4 male colleagues of hers have been promoted to Professor and she has not, despite the fact that she is equally or more accomplished than they were at the time of the promotion. It is clear that the promotions process is university wide and any investigation into it cannot be limited into one School or College only. It is clear that the decision regarding promotion is made by the UCAATP after applicants have received the recommendation for such assessment from their Colleges.

4.4. It is well established in law that in considering the question of whether or not a complainant has been discriminated against in respect of appointment or promotion 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. The Labour Court has noted in A Government Department and An Employee EDA062 that there is no exhaustive list of factors which can give rise to an inference of discrimination. However, in cases involving promotion, a lack of transparency and/or manifest irrationality in the decision making process is sufficient for an inference of discrimination to arise.

4.5. Manifest irrationality will arise in circumstances where on its face a successful comparator is clearly less qualified and/or experienced than the complainant. Wallace is an example of such manifest irrationality. I find that this is not the issue here. It is clear that the complainant is a distinguished academic and while it clearly is not a matter for me to go behind the UCAATP's decision I have had sight of the comparators' portfolios that the complainant requested and the respondent volunteered to provide as part of the investigation. I do note from a cursory glance that it is clear that none of the comparators referred to are obviously less qualified or accomplished than the complainant. It was submitted by the complainant that an inference concerning a missing portfolio relating to one of the named comparators should rise and that it is possible that this person had not even submitted the portfolio to the promotion process as required. Without evidence to support such an allegation I reject such accusation as fanciful. I find that the respondent has clear requirements that must be met by applicants before an application proceeds to the UCAATP.

4.6. I am satisfied that all of the comparators have similar qualifications and lengthy publication lists. I note that the complainant disagreed with the UCAATP's assessment of them and submitted that there had been errors in the manner which these records had been evaluated. I also note that the exercise that the complainant carried out in relation to weighing of her comparators publications was not carried out on the complete works of the male comparators. I have found no evidence to suggest that the promotion process in 2007 was manifestly irrational in its result.

4.7. The statistics in relation to the gender breakdown in the promotion round speak for themselves. There is no evidence to suggest that the two criteria - Research and Scholarship and Academic Leadership - are more crucial that the other two criteria. Even if they were I fail to see any nexus between such an assertion and the complainant's gender. The complainant made further allegations of unfairness that affect her and her academic work personally. I am not going to expand on them here no more than to say that it is clear that these matters that relate to the complainant herself and/or her chosen area of expertise, not to a gender per se.

4.8. In relation to the allegation that the fact that the respondent could not definitely explain what distinguished a successful candidate means that there is subjectivity in the process. I accept this to a point. The role of the UCAATP is to assess different individuals representing a broad range of academic interests and specialties. Every promotion round in the respondent university and elsewhere will be partly influenced by the persons assessing the process and by the candidates participating in it. This is not evidence of unfairness and gender discrimination. It is evidence that the person applying for the position/promotion is being assessed on his or her merit and not by his/her gender, age, nationality, etc.

4.9. I find that the respondent operates a promotion system that is not competitive between the candidates. Promotions are not limited to given numbers and, provided that a predetermined standard has been met, any number of applicants can be promoted. Promotions are provided on a merit basis and the assessment is carried out by an internal panel of peers and by external assessors. I note that much of the complainant's case is based on the premise that she was less favourably treated because of the area of speciality that she is in and/or because of the school that she works with. On the one hand she accuses UCAATP of ignoring her College Executive's recommendation because of a male bias. On the other she also accuses the College that made this recommendation of 'male domination'. This male domination argument was also used to explain why the complainant, whose 'academic leadership' was not deemed to be sufficient by UCAATP, could not have achieved such positions.

4.10. In HSE v A Worker EDA1011 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 if the complainant maintains that any aspect was not adhered to.

4.11. I have found no evidence to suggest that any of the criteria expected of candidates is indirectly discriminatory on the gender ground. I have found no irregularity in the selection process, no delays and - while I note that the complainant maintains that no person on the selection committee had any 'spot on' expertise in relation to her own work - the evidence supports the respondent's position that the complainant's achievements were thoroughly assessed. I note that the complainant does not accept this assessment. However, I have found no evidence to support the complainant's claim that this assessment was influenced by the complainant's gender.

4.12. I note that the use of external referee and assessor is consistent with the respondent's requirements concerning same. I accept that the responsibility of assessing the merits of the candidates was deputed to UCAATP consisting of members whose qualification for the task assigned to them is beyond question.

4.13. While the gender composition of the UCAATP is not sufficient in the circumstances of this case to establish a prima facie case of discrimination on the gender ground, I do wish to use this opportunity to express my concern concerning the lack of gender diversity in it. It became apparent that at the time of the hearing there were no women involved in the decision making concerning appointments to Professor and only two women are involved in the decision making process considering Associate Professors. It ought to be clear that is unacceptable that such a committee has no or very few female members in circumstances where the respondent is a large and important equal opportunities institution that employs significant numbers of eminent women and men. I would urge the respondent to take appropriate steps to rectify this gender imbalance as a matter of urgency and to aim for at least a minimum of descriptive representation on such important bodies as UCAATP. Such steps would ensure even greater transparency in the decision making process.

5. Decision

5.1. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:

5.2. I find that the complainant has not established a prima facie case of discrimination on the gender ground.

______________
Tara Coogan
Equality Officer
21 February 2012