EDA1313

Background

St Patrick’s College is one of Ireland’s largest Colleges of Education. Since 1993 it has been a constituent College of Dublin City University offering courses in Education and Humanities. A large proportion of the Primary School Teachers of the country are educated there. The College offers 18 programmes at undergraduate and postgraduate level up to and including PhD level. The College has grown substantially over recent decades. In an effort to develop the career structure for academic staff, the College sought and was granted approval to create new positions at Principal Lecturer and Senior Lecturer level. The College advertised the new positions amongst all qualified staff. Following consultations with the relevant stakeholders the College decided to divide the available Senior Lecturer positions equally between the Humanities and Education faculties. Some were so-called designated duty positions. Others were merit positions awarded on the basis of stated criteria. There were 15 posts in total, five posts in Humanities, five posts in Education and five designated duty posts. The case before the Court arises out of the merit position competitions for Senior Lecturers in Humanities.

In total 40 staff members applied for the vacant positions. Some applied to be considered for both the designated duty and merit positions. Others applied to be considered for the merit positions only. The three Complainants in this case applied to be considered for the merit positions only.

The procedures adopted by the College for the competition are set out in a document entitled “Promotion to Senior Lecturer Policy and Procedures”. The College considered applications for the post under three headings, “Teaching, Research and Scholarship”. Candidates for consideration for appointment were invited to complete an application form accompanied by ( 1) a personal statement of circa 1 page outlining why they should be considered for promotion; (2) the name and postal and email addresses of two eminent external referees and one internal referee; and (3) identify three publications (or references to other activities) which they considered their major contributions in their chosen field and to submit one copy of each publication with the application form.

The procedures document went on to note that successful applicants are expected to be qualified to PhD level. In the unusual circumstance that a candidate did not hold a PhD the policy document specified that a detailed justification for the absence of this qualification must form part of the application.

Screening/shortlisting by a subcommittee of three members of the Promotions Board was provided for, the sole purpose of which was to establish that a prima facie case for further consideration for promotion was supported by the application. No limitations on the size of the shortlist were imposed.

The Promotions Board consisted of the President of the College or a nominee, the Registrar or a nominee, two nominees of the University and two external assessors of national standing nominated by the College following consultation with the University.

The policy and procedures document provided stated that “ Interviews will be required for all positions with designated responsibilities. They may be required for other positions”.

It further provided that “ the recommendations of the Promotions Board will be forwarded to the Governing Body of the College for approval and to the Governing Authority of the University for ratification.”

The policy and procedures document contained an Equal Opportunities clause in the following terms “ The College is committed to equal opportunities for all staff. When reviewing a candidate’s record, consideration will be given to any special circumstances which may have resulted in a lack of opportunity for a candidate to perform to their full potential in any area of activity. For example time away from work because of family responsibilities could have delayed career development. Care will be taken to ensure that equal opportunity factors are taken into account when each area of activity is considered”.

The policy and procedures provided for an appeals procedure as follows

“ An appeal against the eventual outcome may only be made in respect of an alleged irregularity in procedure and should be made to the Human Resources Manager in the first instance. If not resolved at that level, the individual may bring the issue to the attention of the President and, ultimately, of the Governing Body of the College.

The Promotions Board appointed to assess the applications consisted of

• 
  •Dr Pauric Travers, President, St Patrick’s College;

  •Ms Olivia Bree, Acting Registrar, St Patrick’s College;

  •Professor Eithne Guilfoyle, Dean of the Faculty of Humanities, Dublin City University;

  •Professor Michael Cronin, School of Applied Languages and Intercultural Studies, Dublin City University;

  •Professor Margaret Reynolds, Head of Education Department, St Mary’s University College, Belfast; and

  •Professor Tom Collins, Head of Education, NUI Maynooth and Chairperson of the NCCA.

None of the Complainants was successful in the competition. They submitted appeals against the decision of the Promotions Board in accordance with the procedure set out in the “Policy and Procedures” regulations. None of the appeals had the effect of reversing or varying the decisions of the Promotions Board. Finally they submitted a complaint to the Equality Tribunal under the Acts.

Complainants’ Position

The Complainants submit that the selection procedures carried out by the College were defective.

They submit that the Promotions Board failed to keep notes of its deliberations on the respective applications for promotion. They submit that this failure gives rise to a lack of transparency thereby severely restricting the Respondent’s ability to rebut the complaint of age discrimination. In this regard the Complainants referred to the decision of this Court inLouth VEC v Don Johnson EDA 0712in which the Court stated

• “The failure to keep records has been commented on by this Court many times. A failure to keep records of interview processes which of itself may not be discriminatory, when coupled with other factors, may lead a Court to infer that there has been discrimination”.

The Court was also referred to similar Decisions in EDA 082 Mary Immaculate College v Sr Mary Loye in which this Court stated “As only minimal records exist, the process could not be said to be transparent or examinable”.

• InGillen v Department of Health and Children DEC-E-2003 – 035the Equality Officer stated

  “It is a matter of particular concern that no written records exist in relation to either the interviews for the interdepartmental competition or the NAC discussions for the internal competition. In the absence of a formal marking scheme, the respondent can offer no justification for his non-selection. In this instance, I must consider that the absence of interview notes, as well as the lack of proper assessment criteria, strongly supports the allegation of discriminatory practices.”

They submit that the decision of the Promotions Board not to conduct interviews gave rise to an absence of transparency and a lack of confidence in the integrity of the process. They further submitted that it increased the scope for unconscious bias on the age ground to influence its decisions.

They submit that the appeals system was neither robust nor transparent. They submit that it amounted to no more than the University reviewing its own decisions and thereby acting as a judge in its own cause.

They submit that the members of the Promotions Board did not have sufficient time to assess the detail of the applications submitted by the candidates. They submit that they, in effect, had no more than two or three days to assess the detailed and complex applications of 40 candidates.

They submit that the Promotions Board received no training in equality issues and accordingly were not familiarised with their obligations under the law in this regard.

Finally, they submit that the College did not consult with their trade union, IFUT, regarding the Policy or Procedures governing the assessment process, the composition of the Promotions Board or the outcome of the process. They further submit that had it consulted IFUT in the manner claimed by the College, it would not avail it as a defence to the complaint before the Court.

Respondent’s Position

The Respondent submits that it set about filling a number of merit-based promotional posts in a fair and objective a manner. It appointed a Promotions Board consisting of six eminent academics, two internal and four external to the College. It published Policy and Procedures guidelines for the competition and applied them impartially to the applications received. The policy document provided for applicants for merit promotions to make written submissions for consideration by the Promotions Board under three headings 1) Teaching Experience; 2) Research and Scholarship; and 3) Administration and Service. The procedures provided that appointments to merit based Senior Lecturer posts would be based on an assessment of the written applications together with reports from the referees nominated by the candidates. The Policy and Procedures adopted for this competition did not envisage a personal interview of the candidates by the Promotions Board. However, the option of calling candidates for interview was left open to the Board. In fact it decided to recommend candidates for appointment without exercising that option.

The Human Resources Department sent copies of all of the application forms and accompanying documentation relating to each of the candidates to the members of the Promotions Board in advance of a Board meeting that took place on 18 June 2007. At that meeting it scored each of the candidates on a scale of 1 – 6 in relation to each of the three appointment criteria according to an assessment guideline scheme that had been agreed in advance. To qualify for appointment as a Senior Lecturer, candidates required a total score of 11 points with a minimum of 3 points under each factor. All applicants with a score of 11 or above were rank ordered by score.

There were five positions available in Humanities. The five highest scored candidates were recommended for promotion by the Board.

A similar procedure was adopted by the Board in relation to the Education Faculty.

The standard of applicants was very high. A significant number achieved a total score of 11 or more points and were qualified for promotion. However, as the number of qualified candidates exceeded the number of vacancies, those with the highest scores were put forward for promotion by the Board.

None of the three Complainants was successful in the competition. By letter dated 16 October 2008 they appealed to the President of the College against the decision of the Promotions Board to recommend another applicant from the Irish Department for promotion. A cited reason for their objection was “the order of seniority in the Irish Department would be destroyed by the decision”. The Respondent submits that at a meeting with the College President it was explained to them that the posts were awarded on merit and not seniority. The President advised them that he had no authority to interfere with the outcome of the competition and that it would be improper for him to do so.

The Complainants subsequently appealed to the governing body of the University. A Sub-Committee comprising Professor John Coolahan (Chairperson of the Governing Body), Mr Feichin Mac Donagh SC and Sr E. Cotter, a former School Principal, was established to consider the matter. They reviewed all relevant files and documents and concluded that the complaint was without merit.

The Respondent submits that the Complainants have failed to establish a prima facie case of discrimination on the age ground and that the Court should uphold the Decision of the Equality Officer.

The Respondent submits that an analysis of the ages of the candidates for promotion compared to the ages of those that were successful in the competition reveals that age was not a factor in the decision-making process.

It submits that 40 candidates applied for promotion ranging in age from 35 to 63. On the date the Promotion Board met to assess the candidates one of the Complainants was 60 years of age one was 54 years and the third was 53 years of age.

Two of the successful candidates were aged over 60 years and a third one was the same age as the oldest Complainant.

Eight successful candidates were the same age or older than the second Complainant and eight successful candidates were older than the third Complainant.

It submits that the age profile of the applicants ranged from 33 years to 63 years of age. The average age of the applicants was 49.

The ages of the successful applicants were as follows

Age of Successful Applicants Number of Successful Applicants

63 1

61 1

60 1

59 2

58 1

55 1

54 1

50 1

43 1

42 1

38 1

37 1

36 1

35 1

The Respondent submits that an analysis of the ages of the successful candidates demonstrates that no bias towards younger candidates was present in the process.

It refers the Court to the Decisions inDublin City University v Jane Horgan EDA0715andSr Mary Loye v Mary Immaculate College EDA082relied on by the Complainants. It submits that the determination in both cases is contingent on the “absence of independent corroboration” which it argues does not apply in this case. It submits that the outcome of the competition constitutes independent corroboration that satisfies the contingency envisaged by the Court.

It submits that DecisionE2005/030 Ronaldo Munck v National University of Irelandis not relevant as the reference to the maintenance of interview notes does not apply to a selection process based on assessment criteria without interview.

The Law

Section 6 of the Act in relevant part provides:-

6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds insubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of thisAct) are—

• (f)that they are of different ages, but subject tosubsection (3)(in thisActreferred to as “the age ground”),
  

8.—(1)In relation to—

• (d)promotion or re-grading, or

• an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
  

The Burden of Proof

Section 85A of the Act provides:-

• 85A.—(1)Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
  
  (2)Thissectionis without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.
  
  (3)Where, in any proceedings arising from a reference of a matter by the Authority to the Director undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in aparagraphof that provision has occurred, it is for the respondent to prove the contrary.
  
  (4)In thissection‘discrimination’ includes—
  • (a)indirect discrimination,
    (b)victimisation,
    (c)harassment or sexual harassment,
    (d)the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of thatsection, is null and void.

• “This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
  
  It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
  

• “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 a burden of establishing primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”

• “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”

The Complainants submit that at the time the impugned appointment was made they each had 28 years’ service with the College. The chosen comparator had 9 years’ service. The Respondent did not contest these facts.

The Court finds that the service qualification threshold for consideration for appointment to the vacant positions was three years’ service at Lecturer Level with the College. Both the Complainants and the comparator met that requirement. It would appear that service beyond three years of itself did not benefit the candidates. Accordingly, both the successful candidate and the comparator were qualified for consideration for promotion on the basis of their service on the last day on which candidates could make application for consideration for promotion.

The information provided to the Court suggests that there is a strong link between age and length of service within the College. While the College is entitled to set necessary, reasonable and proportionate service-related criteria for selection for promotion and to reward loyal service, it is not free to do so with impunity irrespective of the consequences for a member of any or all of the categories that are afforded protection under the Act. Accordingly, had the College given service in the grade a more significant weighting that that provided for in this competition it ran the risk of raising an inference of discrimination against younger candidates. Accordingly the Court finds that length of service in the grade was reasonably and proportionately weighted in the competition.

The Complainants submit that they each had a greater volume of published work to their names than the successful applicant. The Respondent submits that quantity alone is not the relevant criterion for assessing any candidate’s published work record. It submits that the quality is an important consideration also and that the Promotions Board was best placed to make that assessment.

The Court accepts the Respondent's contention that academic publications cannot be assessed by quantity alone. The Court accepts that this is a complex matter that requires an assessment of both the quantity and quality of the publications concerned, the status of the academic journals in which they are published together with the number of references to those publications by other scholars in the field. Moreover, the Court notes that academics of long-standing are more likely to have a larger number of publications to their names than ones with lesser service. Accordingly, a promotions board must be careful to ensure that it does not indirectly discriminate against a younger candidate by simply counting the number of publications to their name without making an appropriate adjustment for the period of time they have been active in the field. No evidence was presented to the Court to show that the Promotions Board conducted that assessment in an unfair manner or against irrational or inconsistent criteria or that the assessment was manifestly unjust. Accordingly, the Court finds no merit in this aspect of the complaint.

The Complainants submit that they had, in the course of their careers in the College, supervised a larger number of graduate students than the comparator. The Respondent submits that the number of students supervised was a function of their length of service in the College and did not amount to a superior record of achievement to that of the successful candidate. It submitted that the Promotions Board was best qualified to make this assessment.

The Court accepts the Respondent's submission that the number of graduate students supervised by the Complainants and the comparator is a function of their length of service with the College. The Court found no evidence that the comparator had performed at a lower academic level than the Complainants but simply that he had been performing his duties for a smaller number of years. As a consequence he supervised a smaller number of graduate students but apparently no less competently than the Complainants. No evidence of bias on the part of the Promotions Board in conducting such an assessment was presented to the Court. Accordingly, the Court finds no basis for substituting its judgement of the respective merits of the work of the Complainants and comparator in this regard or for preferring the Complainants’ assessment of their and the Comparator's respective merits to that of the Promotions Board appointed for that purpose.

The Complainants submit that the interview process was defective in three respects

Firstly, they submit that the candidates for promotion were not interviewed by the Promotions Board.

The Respondent submits that the Promotions Board had an option of conducting interviews and decided not to exercise it in this case. It further submits that the procedures employed were common to all applicants.

No evidence was presented to the Court to suggest that younger candidates are advantaged or older candidates disadvantaged by the inclusion or exclusion of a personal interview in the selection process. Accordingly, the Court finds no merit in this complaint.

The Complainants secondly submit that the members of the Promotions Board were not briefed on their obligations under equality legislation prior to commencing their work. The Respondent submits that the commitment to equality is set out in the procedures and processes document that governed the conduct of the competition. It further submits that the members of the Board were experienced academics that had long experience in academic selection processes and were fully aware of their statutory obligations and of College policy.

The Court finds that it is best practice to brief all interview board members on their obligations under the Acts. Members of interview boards should be trained on the requirements of the Acts and provided with techniques to identify and eliminate personal, cultural and societal bias that would cause them to discriminate against persons of any age. They should undergo training in this regard to ensure that they are capable of meeting their statutory obligations.

The fact that the members of this board are all eminent academics of international standing is not a reason for excluding them from the need to undergo such a briefing and or training.

However, while such training is normally considered advisable it is not mandated by the Acts. Rather the statutory obligation on interview boards is to comply with the provisions of the Acts. The extent to it has been complied with can normally be established from a review of all of the evidence available to the Court including the age composition of the interview board, the evidence of both the board members and the candidates and the outcome of the process.

This is the context in which the Court must consider the fact that none of the interview board members were either formally briefed or provided with specific training regarding their statutory obligations.

The members of the Promotions Board ranged in age from 46 to 53 years of age. Two of the Complainants were in and around the same age as four of the members of the Promotions Board. Accordingly, there was no disparity in age between two of the Complainants and the members of the Board. The third Complainant was a number of years older than any of the members of the interview board and this might be a factor that the Court should consider. Equally, however, a number of the candidates were considerably younger than any of the members of the interview board. This would suggest that there was a potential for discrimination by the Board against both younger and older candidates that requires further examination by the Court.

In that context the Court reviewed the outcome of the assessment process to determine if the results revealed any evidence of discrimination towards candidates of any age and in particular candidates in and around the same age as the Complainants.

The information before the Court reveals that there were twenty candidates who were 50 years of age or younger and twenty candidates who were older than 50 years of age. Six of the successful candidates were less than 50 years of age while nine were 50 years of age or older.

Eight candidates were sixty years of age or above. Of these, four were successful in the competition.

These figures suggest that 30% of the candidates under the age of 50 were successful in the competition, 45% of the candidates over 50 years of age were successful, 50% of the candidates over the age of 60 were successful and 41% of the candidates aged between 50 and 60 were successful.

Considered in that context the Court finds no evidence of discrimination against older candidates as claimed by the Complainants.

The Promotions Board did not interview candidates. Rather it assessed candidates against their written applications together with the publications and referees' reports that accompanied them. Accordingly, as no interviews took place, none of the candidates was in a position to give evidence to the Court on this point. Three members of the Promotions Board told the Court that age was not at any stage considered or discussed or taken into account by them in the course of the competition. Mr Mike Jennings of IFUT, on behalf of the Complainants, told the Court that he had no reason to contest these statements. Accordingly. the Court finds that the Promotions Board did not take the age of candidates into account when assessing the applications for appointment to Senior Lecturer positions.

Finally the Complainants submit that the Interview Board did not have sufficient time to consider the applications prior to making their decisions. They submit that the Interview Board members had two working days in which to consider the documentation submitted by forty applicants for promotion. The Respondent submits that the Board members had adequate time to consider the applications.

The Court finds that the Promotions Board had sufficient time to consider the applications in detail and to come to their conclusions on the merits of the respective candidates. More importantly, however, the Complainants have adduced no evidence to suggest that age discrimination was the likely direct or indirect result of the time pressure to which they say the Board was subject. It is not sufficient to allege that there was a defect in the procedure unless it is in some way related to the issue before the Court. It is not the Court’s function to review the procedure but rather to determine if the defect complained of raises an inference of discrimination on the statutory ground. In this case no such inference was raised by the Complainants to the satisfaction of the Court.

The Court determines that the Complainants have not established facts, on credible evidence, from which, an inference of discrimination arises. Accordingly the Court finds that the Complaints are not well-founded.

Determination

The Court determines that the complaint is not well-founded. The appeal is rejected. The Decision of the Equality Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
15th July 2013______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.