EDA131

• 
  The Dispute
  
  The Complainant was employed by the Respondent as a Senior Lecturer in its School of Business and Law. She has since retired but has resumed employment with the Respondent under a fixed-term contract. The case concerns the Respondent’s failure to appoint the Complainant to the post of Professor in a round of promotions conducted in 2007. The Complainant contends that she was denied promotion on grounds of her gender. In advancing her claim she contrasts her treatment with that of four men who were promoted. They are referred to herein as Professors A, B, C and D.
  
  The claim was referred to the Equality Tribunal and it was investigated by an Equality Officer in accordance with s.77 of the Act. The Equality Officer found that the Complainant had failed to make out a prima facie case of discrimination and her complaint was dismissed. The Complainant appealed to this Court.

  Background

  
  The Respondent has in place an established system by which senior academics can be promoted to the grade of Professor. Periodic promotion rounds are held from time to time through this system. It is not a competitive process and there is no fixed number of candidates to be promoted. All candidates who meet the prescribed standards of achievement are eligible for promotion.
  
  The details of the scheme are set out in a document entitled “Promotion to Professor Internal Promotions Pathway 4B”. This document recites that the grade of Professor is the highest academic grade in the University structure. It provides that candidates will be considered for promotion to this grade when, in the view of their peers and colleagues, they have achieved the standard of academic distinction and output consistent with the grade.
  
  The fundamental requirements for promotion to the grade are set out at paragraph 1.3 of this document as follows: -
  

  • “Applicants for promotion to Professor are expected to have an international reputation. Professors will have achieved an internationally recognised leadership position in their disciplines from pioneering inquiry into important issues in that discipline, evidenced through sustained high-level activity. Assessment for promotion will be based primarily on the Research and Scholarship and Academic Leadership criteria. In exceptional circumstances, promotion may be based on the Teaching and Learning criterion reflecting internationally recognised peer-reviewed achievement in the applicant’s scholarship of teaching and learning and / or pedagogical innovation within the discipline”
  
  
  There is a second process by which academics may be promoted to the grade of Professor known as the Competitive Retention Pathway. This process is intended to provide academics that have been offered a professorial position in another University an opportunity to obtain promotion and to remain within the Respondent University. The criteria for promotion are the same as that applicable under the main scheme.
  
  Promotions are considered by the University Committee for Academic Appointments, Tenure and Promotions, known as ‘UCAATP’. This Committee is made up of Professors from within the University and it is augmented by external experts who are also Professors. The assessment of candidates by this Committee is made on the basis of the written applications submitted to the Committee. Candidates are expected to provide details in their written application of their academic and professional achievements against the predetermined criteria upon which promotions will be made. Their suitability for promotion is also assessed by the School in which they work. The report of the College Committee is taken into account by the UCAATP in reaching its decisions. Candidates obtain an assessment of their professorial standing from an external academic of their choosing and by two additional external assessors who are appointed by the University.
  
  The Complainant applied for promotion to the grade of Professor in 2006. Her application was unsuccessful. The principal reason given for the rejection of her application at that time was that she failed to meet the eligibility criterion of having held the post of Associate Professor for at least five years. An exemption from this requirement can be granted on the recommendation of the College Committee but no such exemption had been recommended in the case of the Complainant. The Complainant subsequently applied for an Associate Professorship but was again unsuccessful.
  
  A further round of promotions was held in 2007. The requirement that candidates hold an Associate Professorship had been removed and the Complainant was eligible to apply for promotion to full Professor in that round. The Complainant received a favourable recommendation from the College Committee of the School of Business and Law in which she taught. Her own referee and the external assessors appointed by the Respondent to review the Complainant’s application also reported favourably on her eligibility for promotion. In accordance with standard practice the external assessors were asked to indicate if, in their opinion, the Complainant would be eligible for promotion to the grade of Professor in the University to which they were attached. They each answered that question in the affirmative.
  
  The Complainant was not promoted in that round. She was one of 19 applicants for promotion to Professor. Four of these applicants were women and 15 were men. Two women and six men were promoted to the grade of Professor.
  
  The UCAATP which made the appointments in 2007 comprised 13 members. 12 of those were men and there was one woman.
  
  
  
  The case was heard at first instance by an Equality Officer of the Equality Tribunal who held that the Complainant had failed to make out a prima facie case of discrimination. The Complainant appealed to this Court.

  Position of the parties

  The Complainant

  
  The Complainant told the Court in evidence that she regarded her achievements under all of the criteria used to assess candidates for promotion to the grade of Professor to be at least equal, and in some cases superior, to those of the male candidates nominated as comparators who were promoted. In the course of her evidence the Complainant referred to the outcome of the 2006 promotions. She is not relying on the failure of the Respondent to promote her in that round for the purpose of seeking redress. Rather, she contends that it is relevant and probative of a discriminatory disposition on the part of the Respondent.
  
  For the purposes of the 2006 round there was a general requirement that candidates for full professorial positions should have held an Associate Professor position for at least five years. However, an exemption from this requirement could be provided if recommended by the relevant College Committee. In November 2005 the Complainant applied to the Committee of the College of Business and Law seeking an exemption from this requirement on the grounds of the cumulative impact of her work since her last promotion to Senior Lecturer in 1993. This application for an exemption was refused by the College Committe, which was comprised entirely of men. The Complainant told the Court that she nonetheless applied for appointment as a Professor but her application was rejected on the basis that she did not meet the eligibility criteria of having held an Associate Professorship. In the event, seven academics from the School of Business at various levels were promoted in the 2006 round, all of whom were men.
  
  Following the rejection of her application for promotion to a professorial position in the 2006 round the Complainant was advised to apply for promotion to the grade of Associate Professor. She did so but was again unsuccessful.
  
  The Complainant told the Court that she subsequently met with two members of the UCAATP in order to obtain feedback in relation to her failed applications for both Professor and Associate Professor positions. She was informed that her publication trajectory was strong but not sufficient to merit promotion to either level. She was advised that she would need more good journal publications although, according to the Complainant, they were unable to specify what were considered to be ‘good journals’. According to the Complainant she was told that the publication criteria for promotion to either level was not a simplistic benchmark but was a matter of a qualitative feel and judgment by one’s peers.
  
  The Complainant did not appeal against the decision not to promote her in the 2006 round.
  
  The Complainant again applied for promotion to the grade of Professor in the 2007 round of promotions. By that stage there was no longer a requirement that candidates hold the grade of Associate Professor. In accordance with the promotion procedures the Complainant’s application was first assessed by the College Committee of the School of Business and Law. This body recommended her for promotion. Her application was also assessed by an external referee nominated by her and three assessors nominated by the Respondent. The referee and each of the external assessors were senior distinguished international academics. They each reported positively on the Complainant’s application against the predetermined criteria on which her application was to be judged. Despite these positive endorsements of the Complainant’s suitability for promotion the UCAATP again rejected her application.
  
  The stated reasons for the rejection of the Complainant’s application were set out in the report of the UCAATP as follows: -
  

  • •Lack of evidence of a substantial volume of publications in high-impact, high quality refereed research publications,
  • •Limited PhD supervision,
  • •Limited funding,
  • •Limited evidence of academic leadership within UCD,
  • •Limited evidence of contribution to the management or direction of the University through active engagement in internal committees or other activities that foster the development of the University as a community
    
  The Complainant said that she again obtained a feedback session in relation to this application. In the course of that session she was informed that candidates for promotion to full Professor would normally be expected to have attained the grade of Associate Professor. This, the Complainant pointed out, was no longer a requirement under the scheme.
  
  The Complainant gave detailed evidence in which she contrasted her qualifications against those of her comparators under the published criteria of: -
  
  • (a)Research and scholarship,
  • 
    (b)Academic leadership
    
    (c)Teaching and learning,
    
    (d)Contribution to the University in the wider community
  
  The import of the Complainant’s evidence was that in respect of each of the published criterion against which the application was to be considered her qualifications was equal to, or greater than, those of her nominated comparators who were promoted. The Complainant told the Court that, like her, comparator D had not attained the grade of Associate Professor. She acknowledged that comparator D was promoted through the Competitive Retention Pathway scheme. She pointed out, however, that the criteria for promotion under this scheme were the same as that in the main scheme.
  
  On the evidence adduced the Complainant contends that the most likely reason for the impugned decision of the UCAATP was related to her gender. In advancing that contention the Complainant placed particular reliance on the following: -
  
  • •The absence of gender balance within the UCAATP,
  • •That she in fact met all of the published criteria for promotion,
  • •That her qualification against those criteria equalled or exceeded those of her male comparators, who were promoted,
  • •The positive recommendations which her application received from the College Committee and her external referee and the assessors appointed by the Respondent,
  • •The absence of any transparent basis for the UCAATP’s decision.
    
  
  The Respondent

  
  The Respondent denies that the Complainant was discriminated against on the grounds alleged or at all. In relation to the 2006 round of promotions the Court was told that seven applications were received from academics within the School of Business and Law for an exemption from the requirement for five years’ service at Associate Professor level. Five of these applicants were men and two were women. Two of the male applicants and one female applicant were granted an exemption. This, according to the Respondent, demonstrates the absence of any taint of gender discrimination. The failure of the Complainant to obtain an exemption from this requirement was the principal reason why her application was unsuccessful.
  
  In relation to the Complainant’s application for appointment to the grade of Associate Professor, it is the Respondent’s position that her application was considered by the UCAATP and it was found on an objective analysis of her achievements that she did not meet the specified criteria.
  
  Evidence was given by Professor Colin Scott in relation to the 2007 round of promotions. Professor Scott is Dean of the School of Business and Law and was a member of the UCAATP that considered the Complainant’s application.
  
  Professor Scott told the Court that the UCAATP is chaired by the President of the University and comprises Professors from various disciplines. In the case of the Complainant’s application there were 13 members on the Committee two of whom were external Professors. Twelve of these members were men and there was one woman.
  
  It was this witness’s evidence that applicants for promotion are expected to provide comprehensive evidence in writing of their achievements against the predetermined criteria. The applications are provided to each member of the UCAATP in advance of their meeting together with the report of the College Committee and that of the external referee and assessors.
  
  According to Professor Scott the discussion on each application is normally led by the external members and other members then give their opinion on the merits of the application. The discussion on each application usually lasts for approximately one hour. The committee normally concentrates on the cumulative influence of the candidates’ achievements to determine if they have reached the required standard of academic leadership in their particular field. In that process some criteria are weighted higher than others. Publications by the candidate in peer reviewed journals are considered particularly important as is the extent of the impact rate of their publications. All candidates are expected to reach the same standard of achievement but there can be what the witness described as different intensity depending on the discipline from which they come. The witness told the Court that obtaining external funding is important but that an absence of funding is not fatal to an application.
  
  In relation to the Complainant’s application, Professor Scott told the Court that the UCAATP was not satisfied that the cumulative influence of the Complainant’s achievements were sufficient to enable her to progress to the level of Professor. He said that this decision was reached solely on the basis of the information provided in her application. He denied that gender was a consideration in the process and he pointed out that the University fully adheres to principles of equality of opportunity. In relation to the Complainant’s evidence concerning her achievements vis-á vis those of her comparators, the witness said that he was only involved in the selection of comparators C and D and that the UCAATP decided that both of those candidates merited promotion and that the Complainant did not. The witness accepted that comparator D did not hold the grade of Associate Professor but he pointed out that this comparator had been promoted through the alternative Competitive Retention Pathway scheme. He accepted that the criteria for promotion through this scheme were intended to be the same as that of the main scheme.
  
  The witness accepted that the only record of the proceedings of the UCAATP was the written statement of the results. No record is maintained of the discussion on applications nor is there any marking system in place.
  
  The witness told the Court that considerable importance is attached to the recommendations of the College Committee in considering applications although the UCAATP is not bound by these recommendations. He said that less importance is attached to the recommendations of the referees and the external assessors. In response to a question from the Court, Professor Scott said that he thought that in two or three cases the recommendation of the College Council was not followed. Ms Guinness B.L (Counsel for the Complainant) put it to the witness that the Complainant was the only unsuccessful candidate who had been recommended for appointment by the relevant College Executive. Professor Scott qualified his earlier answer by saying that he was uncertain on this point but that he would accept the position put to him by Counsel.

  The Law

  Relevant authorities

  
  The legal principles applicable in a case such as this are well established and can be briefly summarised.
  
  Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. InA Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -
  

  • The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board [2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.
    
    The type or range of facts which may be relied upon by a complainant 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 inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
    
  Particular considerations apply in cases in which discrimination is alleged in the filling of jobs, including promotions. In Determination EDA042,Kathleen Moore Walsh v Waterford Institute of Technologythis Court held that in cases involving the filling of posts it is not the function of the Court to substitute its views on the relative merit of candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.
  
  In Determination EDA077-O’Halloran v Galway City Partnershipthe Court pointed out that the qualifications or criteria which are to be expected of candidates 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 isclearly better qualified against the chosen criteria that an inference of discrimination could arise. That approach is consistent with the decision of the Northern Ireland Court of Appeal inWallace v. South Eastern Education and Library BoardIRLR 193. Here, Lowery LCJ held that the appointment of a less qualified man to a position in the Respondent Library Board in preference to a more qualified woman was in and of itself sufficient to raise an inference of discrimination.
  
  The application of these general principles was considered by this Court inAn Employee v A Government Department[2006] 17 E.L.R. 225. This was a case in which a recovering alcoholic claimed to have suffered discrimination on grounds of disability in the filling of promotional posts. The posts in issue were filled on the basis of seniority and suitability through a system of promotion operated by the Civil Service in which candidates were considered by a group of senior managers in what was known as a consistory. The Complainant in that case was the most senior applicant but he was deemed to be unsuitable for unstated reasons.
  
  In considering the circumstances in which the probative burden shifts, the Court held as follows: -
  
  • 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 in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can, in themselves, give rise to such an inference. In this case the process was wholly lacking in transparency and a candidate's chances of success were as much dependant on their principal officer's power of advocacy and his or her standing with their peers, as on the candidate’s ability to undertake the duties of the higher post.

• I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

• 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.

Relevant principles

From these decisions and authorities the following principles can be extracted: -

• 1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

• 2.If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

• 3.It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts

• 4.In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.5.The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result

• 6.A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

• 7.Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

• 8.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

The 2006 Round
An issue arose as to the admissibility of evidence concerning the 2006 round of appointments. Section 77(5) of the Acts provides that a claim for redress in respect of discrimination may not be referred after the end of the period of six months from the date of occurrence of the discrimination to which the complaint relates. The result of the 2006 round was communicated to the Complainant more than six months before the date on which the within claim was referred to the Equality Tribunal (14^thApril 2008). Consequently she cannot claim redress in respect of any discrimination that may have occurred in that round. Section 77(5) of the Act bars the Complainant from seeking redress in respect of that round but it does not prevent her from tendering evidence in relation to it if that evidence is relevant and probative in her claim concerning the 2007 round.

Counsel for the Complainant confirmed that she is not seeking redress in relation to the 2006 round and that the evidence in relation to that round is directed at showing a pattern of discrimination on the part of the Respondent. On that basis the evidence is admissible.

It seems clear that the rejection of the Complainant’s application for promotion to the grade of Professor in 2006 was because she did not hold the grade of Associate Professor. There is nothing in the evidence adduced in relation to that round which shows a pattern of gender discrimination which may be probative of the facts in issue in her present claim. Likewise, there is little in the way of evidence relevant to the present claim arising from the decision on the Complainant’s application for promotion to the grade of Associate Professor.

Has the Complainant established a prima facie case?
The Court must first consider if the Complainant has established the primary facts upon which she relies in advancing her claim of gender discrimination. If the Court is satisfied that she has discharged that probative burden the Court must go on to consider if the facts proved are of sufficient significance to raise an inference of discrimination.

In essence the Complainant contends that she was as qualified for promotion as her male comparators and in some respects better qualified. She gave detailed evidence as to the basis for her assertions. The authorities indicate that the Court should not engage in a comparative exercise for the purpose of forming its own view on either her or her comparators suitability for promotion. In accordance with the decision inKathleen Moore Walsh v Waterford Institute of Technologythe Court should confine itself to examining the process used and to consider if the evidence adduced suggests a discriminatory taint. There are, however, features of this case which can distinguish it from the other case referred to in which an unsuccessful candidate for promotion effectively invited the Court to substitute its views on the merits of candidates for those of the designated decision makers.

This was not a competitive process in which it was necessary to rank candidates in order of merit. The only question which the UCAATP had to consider is whether or not individual candidates met the required standards against the predetermined criteria. In this case there is independent evidence that the Complainant did meet the requisite standards. The report of the College Committee and the reports from the independent assessors nominated by the Respondent all point in that direction. The authors of these reports were acknowledged internationally recognised academics of high standing in the same discipline as the Complainant. While the content of these reports was not formally proved in evidence there was no objection to these documents being received in evidence. Nor was the bona fides or objectivity of the authors challenged. The testimony of Professor Scott indicated that the UCAATP places considerable reliance on the report of the College Committee in their assessment of candidates. These facts are at least suggestive of a degree of irrationality in the results of the selection process.

The gender composition of the UCAATP must also give rise to considerable disquiet. It is now universally accepted that an appropriate gender balance within selection boards is an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment. That is particularly so in professions and occupations in which women have traditionally been underrepresented. The constitution of a selection board comprising 12 men and one woman must be regarded as inherently inimical to the achievement of full gender equality in access to senior appointments within the Respondent University. Another disturbing feature of this case is the absence of any minutes or other records of the deliberations of the UCAATP which showing the basis upon which its decisions were taken. This is not in accord with best practice and accepted standards of transparency in the filling of promotional positions

While none of these considerations are determinative of the case, their cumulative effect must be sufficient to constitute facts from which discrimination can be inferred. The Equality Officer found that the Complainant had failed to make out aprima faciecase of discrimination. On the evidence adduced in the course of the appeal the Court must respectfully disagree with that conclusion.

If the Court accepts that the Complainant has established facts from which discrimination may be inferred, in accordance with s.85A of the Act the onus of proving the absence of discrimination shifts to the Respondent. The Court must therefore carefully evaluate the evidence tendered by the Respondent to explain its decision not to promote the Complainant. There are a number of established principles that come into play in that process which are derived from the various authorities previously considered.

Has the Respondent rebutted the presumption of discrimination?

The decision inNevins, Murphy, Flood v Portroe Stevedoresand that inBarton v Investec Henderson Crosthwaiteindicate that cogent evidence of a non-discriminatory taint should be required. Further, the decision inNevins Murphy Floodand that of the House of Lords inNagarajan v London Regional Transportindicates that the Court must be alert to the possibility of unconscious or inadvertent discrimination. Hence, mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, on the authority ofWong v Igen Ltdand others, the Court must be satisfied that the decision to reject the Complainant’s application was not influenced to any degree beyond the mere trivial by considerations related to her gender.

Evidence to explain the impugned decision was given by Professor Scott. He gave comprehensive evidence concerning the process followed by the UCAATP and the underlying rationale for its decisions. He said that in order to attain the standard required for promotion to Professor, candidates must demonstrate, to the satisfaction of the UCAATP, that they have attained the highest standard of excellence and international academic leadership in their particular discipline. He said that candidates are judged against predetermined objective criteria solely on the basis of the evidence disclosed in their application. Professor Scott gave what was undoubtedly honest evidence to the best of his ability. The import of that evidence was that the Complainant’s application was decided upon solely by reference to the published criteria and that the members of the UCAATP came to the conclusion that she did not meet the standard necessary to warrant promotion. Professor Scott rejected any suggestion that the Complainant’s gender, or that of any other candidate, had any influence on the outcome.

The Court accepts the veracity of Professor Scott’s evidence. However, the authorities previously referred to in this Determination indicate that corroboration should normally be required of evidence denying a discriminatory taint. In the Court’s view such corroboration can be found in the result of the process. In the 2007 round of promotions there were a total of 19 candidates, 15 of whom were men and four of whom were women. Of the 15 male applicants six were promoted. Of the four female candidates two were successful. This result is inconsistent with a conclusion that the UCAATP was subconsciously disposed to appoint men in preference to women. Moreover, in examining the results of the earlier promotions rounds in 2006 no evidence can be found of a discriminatory disposition on gender grounds on the part of the decision makers.

In relation to the result of the 2007 round the Complainant pointed out that the two women who were promoted were employed in the arts facility of the University and that the UCATT as constituted in considering their applications comprised a female Professor from that facility. There were no women promoted from any of the other facilities of the University. In the Court’s view that does not alter the fact that a higher percentage of women applicants than male applicants were recommended for promotion by the UCAAPT which had substantially the same composition as that which considered the Complainant’s application.

Determination

The Court is obliged to come to a conclusion on whether or not the Complainant was discriminated against on the basis of all of the evidence adduced. It must reach its decision on the balance of probabilities. Where the onus of proof is on the Respondent the question which the Court must ask itself is whether it is more probable than not that the Complainant’s gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers that question in the affirmative, the Respondent will have discharged the onus which it bears. If the Court cannot answer that question in the affirmative, or if it concludes that the probabilities are equal, the Respondent will not have discharged that onus and the Complainant must succeed (see dicta to that effect of Denning J. (as he then was) inMiller v Minister for Pensions[1947] 2 All E.R. 327).