DEC-E2015-108

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-108

PARTIES

Dr Barry Cullen

AND

Trinity College Dublin

(Represented by IBEC)

File reference: EE/2014/224 Date of issue: 23 October 2015

HEADNOTES: Employment Equality Acts Sections 6, and 8(1)(a) – Age – Discrimination on Conditions of /Access to Employment.

1 DISPUTE

1.1 This dispute concerns a claim by Dr Barry Cullen, that on 24th September 2013 he was discriminated against in relation to access to employment by The Provost, Fellows, Foundation Scholars and the other members of Board of the College t/a Trinity College Dublin on the grounds of age to contrary to Section 6 (2)(f) of the Employment Equality Acts. The complainant was 58 years of age at the time of the alleged discrimination.

1.2 The Complainant referred his claim to the Director of the Equality Tribunal on 19th March 2014 under the Employment Equality Acts. His complaint was resubmitted on the Workplace Relations Commission form on 23rd April 2014. On 15th July 2015, in accordance with her powers under section 75(4A) of the Acts, the Acting Director delegated the case to me, Gerry Rooney, 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. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 28th July 2015.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act, 2015.

2 COMPLAINANTS' SUBMISSION

2.1 The complainant applied for the position of Assistant Professor in Social Work at TCD where he was advised on 11th September 2013 that he had not been shortlisted in the recruitment process as he did not “meet the criteria of having high impact international research publications, relevant to career stage”. The complainant subsequently sought information regarding the decision from the respondent which he received on 24th September 2013 and which he is relying upon as the last date of the discrimination. The complainant stated that the employers score sheet used for assessing a candidate’s suitability included six criteria and in each of these criteria, except one- “Research Achievements and Publications (Relevant to Career Stage Stage)- the complainant had scored between 60% and 90% of the marks available. However he was only awarded 33% of the marks available for “Research Achievements and Publications (Relevant To Career Stage Stage). As a consequence this mark brought his overall mark down and he was not shortlisted for the interview.

2.2 The complainant subsequently wrote to the respondent requesting clarification in relation to an explanation as to how it reached the conclusions it did in relation to its scoring of the Research Achievements, and the definitions that apply for the phrase relevant to career stage. The complainant said that on 24th September 2103 he was advised that he “did not meet the criteria of having high impact international research publications, relevant to career stage.” The complainant contended with his employer that the application of marks against the criteria“relevant to career stage” amounted to discrimination on the grounds of age. The complainant contended that the phrase “relevant to career stage” places persons of older years at a disadvantage. Specifically the complainant contended that as he had only 36 months experience of direct, full time employment in an academic position, the application of this criteria presumed to attribute to him longer academic credit history, based on his age.

2.3 Following the Equality Tribunal hearing on 28th July 2015, and in response to a further submission from the respondent, the complainant submitted and again confirmed that he was initially informed of the fact that he was not shortlisted on 11th September 2013, he wrote to the respondent on 13th September 2014 seeking clarification on a number of points including the shortlisting score. He received a response from the respondent on 24th September 2013. The complainant has argued that the file providing his scores was created on 24th September 2013. He has further argued that he suspected this communication might have constituted age discrimination. He stated that he sought clarification on this between 24th September 2013 and March 2014, ultimately submitting his claim to the Equality Tribunal on form EE1. This was subsequently submitted on the WRC form at a later date.

2.4 In his written submission to the Tribunal the complainant also contended that at the time of the recruitment competition the respondent did not have a definition for the criteria of relevant to career stage. The complaint also contended that that the criteria was not circulated in the job applications, and that application by the respondent to short list candidates by applying criteria unknown to the candidates, amounts to a disregard for the importance issuing advance clarity in relation to equality in recruitment, and of the need for this clarity to be made first and foremost to all prospective candidates.

2.5 The complainant further contended that in 2006 he applied for an identical position-Lecturer in Social Work. The complainant advised that in 2006 he met the shortlisting criteria where he was awarded 70% of the available points for Relevant Research Experience (including publications). The candidate stated that he would have improved this rating in any future assessment as he would improve his academic research achievements, which he said he subsequently did.

2.6 From 2008 to 2011 the complainant held a Lecturer in Social Work position, which was his first and only academic position in over 35 years of work, although he contended that he did complete practice, evaluation consultancy, and research and organisational management over his working life. He suggested this experience was not allowed for in the application of the shortlisting criteria.

2.7 The complainant stated that the position he applied for in 2013 was similar to the role he held in 2011. On that basis the complainant argued that the score applied to his application regarding research relevant to career was not plausible. He contended that the use of a measure described as relevant to career stage in fact included age discrimination in how it was applied. The complainant inferred this by reference to the concept that career stage could relate to a linear progression where in turn each career stage could be deduced as to being related to a year of service, and thus when applied to people it can be understood as being related to age. The complainant argued that in the absence of any clear definition regarding the use of relevant to career stage, the respondent created ambiguity in how the criteria could be applied to a variety of variables; and fashioned a potential for the respondent to exercise discretion within the recruitment process, and in this case an age discretion was applied.

2.8 The complainant acknowledged that in the 2013 competition no applicant was found to be suitable and therefore he had no direct comparator. He argued that subsequent advertisements were made by the respondent to fill an identical position which he argued was therefore part of discrimination he alleged he experienced. The complainant had asked the respondent not to progress with the appointment until his complaint to the Equality Tribunal was completed. The position was filled in 2014 which he contended further impacted on the alleged discrimination he experienced.

2.9 The complainant contends that the comparator for his discrimination is in fact the successful candidate that was appointed to the post during following a re-advertisement of the post in the March 2014.

2.10 In addition the respondent has argued that a statement made by the chief executive (Provost) in June 2012, where reference was made to a New Blood Programme is also a matter of concern. The complainant contends that the chief executive in making this statement has inferred that an approach of age related discrimination exists within the respondent’s recruitment procedures.

3 RESPONDENT'S SUBMISSION

3.1 The Respondent submitted that the complainant’s case must be dismissed in that:

3.1.1 The complaint was out of time as the decision not to shortlist the complainant was made on 11th September 2103 and the complaint was not formally lodged with the Equality Tribunal until 23rd April 2014, and was therefore out of time under the Acts.

3.1.2 The complainant has failed to prove a prima facie case under the Acts as he has no direct comparator named in relation to whom he was less favourably treated.

3.2 The respondent also argued that the criteria used in the recruitment selection procedures were fair.

3.3 The respondent outlined that the complainant was appointed to a fixed term position as Lecturer in Social Studies from 19th May 2008 until 18th May 2011. The respondent acknowledged this appointment was made following an appeal by the complainant regarding the selection process that was used for the appointment at that time. Towards the end of this fixed term appointment the complainant made a case to have their contract extended but this was rejected by the respondent and the contract was subsequently terminated. The complainant then contested the redundancy calculations and brought a claim Employment Appeals Tribunal which was rejected.

3.4 The respondent advertised for the position of Assistant Professor, Social Work (Ageing/Migration/Disability) in January 2012 and received 11 applications for the post, including the complainant. No candidate was shortlisted for interview and the post was not filled. The respondent re-advertised the post with a closing date of April 2013. There were four applicants, one was successful at the interview, was offered the post but subsequently turned it down. The respondent again advertised the post of Assistant Professor, Social Work (without the Ageing/Migration/Disability specialism requirement) with a closing date of June 2013 where three applications were received, including the complainant. No candidate was shortlisted for interview and the post was not filled. In March 2014 the position was re-advertised where 6 applications were received, 2 of whom were shortlisted and deemed appointable following interview. The complainant did not apply for the position. The highest scoring candidate was offered and accepted the position.

3.5 The respondent contended that in the June 2013 competition the decision to shortlist was made by a five person selection committee against six criteria. The respondent does not accept any of the criteria that were used were discriminatory or unfair. They argued that the total score that was applied to the complaint was 60% which was short of the minimum requirement of 70%. He was therefore not invited to interview, and as no candidate met the minimum score no candidate was interviewed.

3.6 In applying its scores the respondent contended that the position in 2013 was not the same position as was held by the complainant between 2008 and 2011 as inferred by the complainant. In this regard, and since 2009, the College has been placing greater emphasis on a high level research strategy which identified a marked change in emphasis and importance on the development of a wide, diverse research portfolio intended to support excellence in teaching as well as research. The respondent stated that therefore there is a significantly higher bar in relation to research achievements being asked of candidates for academic posts in 2013 compared to when the complainant was first appointed to an academic role in the College.

3.7 The respondent also stated that the phrase relative career stage was clearly stated in the summary for the post and the person specification documentation that applied to the advertised post in April 2013 and in June 2013. In this regard the respondent stated that the appointee will have, or show clear potential of having, relative to career stage, a track record in: research, including high impact scholarship and international publications; teaching and undergraduate and post graduate level; administration and managerial skills. The respondent also argued that the requirement to demonstrate essential evidence of research achievement, relative to career stage in at least one of the following areas: ageing, disability or migration, in the form of publications peer reviewed international journals and/or publications of equal standing of recognised originality and value was identified in the person specification for the role advertised.

3.8 The respondent contended that the criteria used was therefore not age discriminatory in that it allowed for a person at an early stage in their career to be compared favourably with a person who had longer years’ service as it was not based on a quantum of research. This, it was argued, allowed for a level playing field for all candidates.

3.9 In response to the complainant’s assertion that a reference to “new blood” used by the Provost was ageist, the respondent stated that the comment was made against the background of where a government imposed employment control since 2009 limited the capacity of the College to attract new talent. The comment was made by the Provost in June 2012 when he was addressing the appointment of new Ussher lecturers.

4 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The complainant alleges he was discriminated on grounds of age in relation to not being shortlisted to be interviewed for an appointment to Assistant Professor in Social Work in a selection competition that was run in June 2013. He has identified his comparator as the candidate who was selected during a competition that was run in March 2014, contending this competition was in fact the same post he had applied for in June 2013 where he had been discriminated in relation to the shortlisting process that was applied then.

4.2 The respondent denies it has discriminated against the complainant and furthermore stated the complaint was submitted outside the permitted time and therefore must fail.

4.3 As the Tribunal was asked to consider the matter of the date of the complainant’s submission, and whether this complaint had been submitted within the time allowed under the Acts, the Tribunal advised that it needed to hear more information about the complaint before it could decide on the time limits of the complaint. The hearing therefore progressed without prejudice to either party in relation to the substantive complaint. In this regard the respondent was requested to furnish further documentation in relation to the shortlisting of candidates for the June 2013 and May 2014 competitions for the post of Assistant Professor in Social Work. The respondent submitted a response to this requirement, and the complainant responded to this submission.

4.4 In accordance with section 77(1) (a) of the Acts, a person who claims to have been discriminated against in contravention of the Act may... seek redress. Section 77(5)(a) requires a claim for redress in respect of discrimination to be made within a period of 6 months from the date of occurrence of the discrimination.

4.5 Based on the submissions received the Tribunal is satisfied that the alleged discrimination occurred on 11th September 2013, which is the date that the complainant was advised that he had not been shortlisted. He subsequently sought and received the respondent’s basis for making it decision circa 24th September 2013; but this was after the first date of alleged discrimination.

4.6 The respondent has contended that the complaint was not made to the Director of the Equality Tribunal until 23rd April 2014, in excess of seven months after the alleged discrimination and therefore must fail. The Tribunal is satisfied that whilst the Workplace Relations Commission form submitted by the complainant is dated 23rd April 2014, the complainant had in fact submitted a complaint form on 19th March 2014, and the Tribunal accepted the application that was made on 19th March 2014. At this time the complainant had indicated the last date of discrimination to be 24th September 2013.

4.7 However the date of submission of the complaint on 19th March 2014 is in fact some 27 weeks from the date of the alleged discrimination, i.e. the day the complainant was informed of the respondent’s decision which was 11th September 2013. The Tribunal does not find there is reasonable cause to extend the period of 6 months to 12 months. Accordingly it is deemed to be time barred in accordance with Section 77(5) of the Acts in that the complaint was made outside the six month period.

4.8 The complainant referred to a further clarification of the decision by the respondent on 24th September 2013 as the last date of discrimination. In deciding the time limits of an act of alleged discrimination the Tribunal refers to the Cast v Croydon College, UK Court of Appeal [1998] IRIL 318 which states that “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to an earlier decision”. On that basis the Tribunal finds that the respondent’s correspondence of 24th September 2013 was a reiteration of the decision of the selection board and referred back the correspondence to the complainant received on 11th September 2013. This timeframe has been relied upon by the Tribunal in DEC-E2007-004.

4.9 With regard to the subsequent competition that was conducted in May 2014, the Tribunal is satisfied that the complainant cannot maintain a claim of discrimination in relation to an appointment process for which he had not applied. For the selection procedure that was run in May 2014 the respondent did change some of the requirements for the post, re-advertised it, and the complainant decided not to apply for that position. It is also noted that the complainant has not made any subsequent complaint to the Tribunal post his complaint of 19th March 2014. Accordingly, consistent with Dec-E2007-004, the eventual appointment to the post was the culmination of the appointment process as opposed to being another incident which could in itself constitute a separate cause of action. The six-month time limit therefore, concluded not later than 12th March 2014, and the complaint is out of time.

5 DECISION OF THE EQUALITY OFFICER

5.1 Having considered the evidence presented, and based on the foregoing, I find that the case against the respondent is out of time.

____________________

Gerry Rooney

Adjudication Officer/Equality Officer

23 October 2015