DEC-E2016-153

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-153

PARTIES

Dr Kathleen Moore Walsh

v

Waterford Institute of Technology

Represented by Tom Mallon B.L. (Instructed by Arthur Cox)

File reference: EE/2013/366

Date of issue: 29 November 2016

1. DISPUTE

1.1. This dispute concerns a claim by Dr Kathleen Moore Walsh that she was discriminated against by Waterford Institute of Technology on the grounds of Race and Gender, contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts and that she was victimised contrary to section 74 of the Employment Equality Acts.

1.2. The complainant referred a claim to the Director of the Equality Tribunal on July 20,2013 under the Employment Equality Acts, received on July 29th. On August 1, 2013 the Equality Tribunal wrote to both the complainant and the respondent identifying 28th May 2013 as the most recent date of alleged discrimination. On 10 November, 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Patsy Doyle, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 16 November,2015. I received supplementary submissions from both parties, the final document received on March 16,2016 from the complainants. Both parties got a full opportunity to comment on supplementary submissions requested.

1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, 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 and Presentation

2.1 The complainant is a female citizen of the United States of America. She commenced working as a law lecturer in October 1997 at the Waterford Institute of Technology and is currently working in the lecturer grade. The complainant submitted that she had made several bids to secure promotion within the college over the years but has remained unsuccessful. In addition, she has submitted some complaints to the Equality Tribunal (2002-2004) flowing from issues which arose between her and WIT. She has had some success in these claims.

2.2 The instant complaint refers to the interview process surrounding the promotional position of:

“Assistant Head of Department of Humanities “(Fixed Term Contract)

held on January 28th 2013. The complainant contends that she has been discriminated against on race and gender grounds and that she has suffered adverse treatment by means of victimisation based on her experience during the interview and through subsequent events. On August 1,2013, the Equality Tribunal wrote to the complainant confirming that the reference date (the most recent date of discrimination) for the complaints would be recognised as 28th May ,2013.

2.3 The complainant submitted a very extensive submission in support of her case. By way of background, the complainant told the hearing that she had had a residual difficulty with a member of the Governing Body of the WIT, Ms C who had given evidence, as a member of an Interview Board, on behalf of the IT in a previous case run by the complainant. Since then, she always made enquiries in advance of interviews, whether Ms C was to be a member of the Interview Board and had managed to avoid face to face contact with Ms C at interviews. The complainant was clear that the college was on notice of this concern.

2.4 On 23 January 2013, the complainant had enquired on the makeup of the Selection Board from the Human Resource Dept., only to be told that College HR policy prevented release of these names in advance of the competition. On the morning of the interview, January 28, the complainant met Ms C. in the vicinity of the interview location and learned that she was to chair the interview board. She submitted that she became disturbed by this news and inadvertently banged into a glass door.

She raised her concerns with HR and was informed that “everyone else had gone in “She discussed her options with the HR Manager, Mr O’S and decided to press ahead with the interview. She contended that she had not performed well at interview as she was distracted by the presence of Ms C. She perceived that she had been at a “complete disadvantage”.

Shortly after the interview, the complainant discussed her concerns with the same Hr Manager, seeking a fresh competition without the presence of Ms C. At this point, she was unaware of the results of the competition. The complainant recollected that Mr O S indicated that he would have to discuss the issue with some senior managers, he then suggested she should take the matter up with the Head of School, Dr H.

On 31 January, the Human resource manager phoned the complainant to confirm that results of the competition would be released in the interest of fairness to all candidates. The complainant learned that she had been unsuccessful .The successful candidate was a male colleague. The complainant stated her disappointment at this result as she believed that she was the most qualified for the post.

The complainant sought copies of her interview notes, her score, the score of the other candidates and all memos, emails and notes made by any person concerning the interview process. She also sought a documents from an earlier interview from May 2012. The complainant scored 77/100: 17/20 Qualifications, 20/30 Experience and 40/50 on suitability. The successful candidate scored 85/100.

2.4 On February 1,2013, the complainant sought the intervention of the President of the College with the objective of

(1) To stop the appointments process.

(2) Provision of an independent review of the selection process.

The President’s Office agreed to an independent review of the selection process on February 21. An Independent external expert in Equality issues commenced the review under agreed terms of reference. The completed document was submitted in evidence and contained a series of interviews with the complainant, the Hr staff and the interview board members. Interviews were attached in narrative format. The executive summary outlined that:

2.5 The complainant had difficulty securing a copy of the report and did not secure her copy until July 1st. It was her understanding that the college had received the main copy on May 28th. The college stated that it was their intention to circulate the report in draft to the contributors, inviting comments to be returned to the external equality expert. They asked the complainant for her permission to alter the terms of reference to allow for that to happen. The complainant rejected this suggestion on July 2nd.

The complainant received an email from Hr which was copied to the President of the college on July 5th, with the attached pronouncements:

The summer holidays followed this communication. The complainant referred her complaint to the Equality Tribunal, where it was received on July 29th 2013.

2.6 The complainant met with the college President and Human resources on September 4th. She imparted that she had been diagnosed with a serious illness and surgery was imminent. In addition, her PhD was due. The college submitted that they wished to retain some input into the selection of the forthcoming interview board and agreed to stay the competition until the complainant returned to work. The college appointed two academic staff to act as locums for the “assistant head of dept. position “for the semester. These people were not associated with the competition.

2.7 The complainant proceeded on sick leave, returning to work on October 31st during a non-teaching week. The following week, the complainant was passed by her surgeon for normal duties and followed up the scheduling of the deferred interview. The college have not filled this position to date. The complainant told the hearing that she had great difficulty in being facilitated back onto the teaching staff on her return to work and recounted feeling ostracised and unwanted.

2.8 The complainant contends that there were 9 instances of unfairness in the selection process of January 28th:

(1) Prior equality cases were raised and discussed with interview board members.

(2) The marking scheme was agreed post this conversation.

(3) Lack of transparency in the marking scheme, not linked to job duties

(4) Ms C’s presence served as a deterrent to the complainant’s performance

(5) Non-compliance with Respect and Dignity policy, marking not consistent with conclusion of interviews.

(6) Irrational marking

(7) No proper training for interview board

(8) Lack of retention of individual notes or proper notes

(9) Unfair appeals process.

2.9 The complainant contends that she was victimised having sought equality by lawful means by

(1) Inclusion of Ms C on the interview board.

(2) Delayed access to completed review of the position followed by a request to alter the terms of reference.

(3) Adverse treatment on her return to work post sick leave by Dr H, who was also a member of the interview board of January 28.

2.10 The complainant contends that she was treated less favourably than the successful male candidate because there was an ongoing culture of bias for males in academic management roles within WIT and the marking criteria was purposely arranged to ensure that the successful candidate who did not hold a doctorate was successful .That as an American female, the complainant was treated less favourably in the award of marks for her completed structured taught doctorate ( juris doctorate) and almost completed PhD than the second placed Irish female lecturer’s complete structured /taught doctorate ( Ed D) .That her management experience in US was discounted . That the culture of bias for males in managerial academic roles, prevents women securing management experience necessary for promotion. The complainant contended No 2 on the stand by panel received the same mark as she for experience, yet, she had less experience than the complainant.

2.11 The complainant further contended she was treated less favourably on race due to the shortfall in her marking under the suitability criteria by 10%. The complainant held a strong view that she was the best qualified candidate for the disputed post on the advertised criteria and she expressed the view that her prospect of being afforded a fair interview process was compromised due to her history of taking equality cases against the college and the Institutional gender bias.

2.12 The complainant shared with the hearing that an appeal under Freedom of Information Act to the Information Commissioner has been refused and was not subsequently appealed. A letter from the head of School to the college President dated January 21 2014 remained one of the 7 records sought after by her. The complainant held a strong view that she was being purposefully excluded from progression in her career by WIT.

The complainant also submitted that she had witnessed a long history of marginalisation of women at the college through their withholding of an article she had co-authored for the college magazine .Erga and by their minority status on the promotions within the WIT.

· May /June 2012-2015 (lecturer 3 grade) 16 Male and 7 Female shortlisted, 6 Males appointed.

· May /June 2012-2015 (Head of Department) 14 male and 15 females shortlisted ,3 Males appointed 4 females appointed.

· May /June 2012-2015(ex-academic structure posts) 1 Female appointed and 5 Male.

The complainant also submitted a Male; female breakdown in academic posts at the college and attached a comparative analysis for the cumulative comparator in other colleges in Ireland in December 2013.

The complainant summarised her case as being excluded by WIT through denied access to promotion, denied access to documents exchanged between the parties as a result and an unfavourable return to work post her period of sick leave. She contended that WIT gender imbalance issues are at the root of her case and expressed real doubt that she would ever be invited to join the higher academic positions at WIT.

2.13 The complainant sought a decision from the Tribunal to order:

1 Appointment of the complainant to the position interviewed.

2 Pay the wage differential between both positions.

3 Equality Training for all interviewers and senior management staff

4 Further reliefs as may be deemed just and proper.

The complainant presented two witnesses to the hearing:

Dr W confirmed that she had shared an office with the complainant from 2002 and that she had observed females at the college having difficulty raising matters at the academic council, while males did not have that difficulty. She recalled the topic of the academic calendar being raised in 2007, but not being progressed. She recognised that the complainant “spoke for women”. She had worked with the complainant when a gender specific article was pulled from publication in ERGA, through disagreements within the college. She met the complainant a week after the January 28th interview and found her still very upset.

Dr F was the college Equality Officer, he told the hearing that an Equality Audit had been conducted at the college from which a revised lengthy Equality Policy had been drafted but never implemented. Students had a new equality policy in 2014. He was aware that the complainant had raised the topic of “Professorships” at the college.

3 Respondent’s submission and presentation:

3.1 The respondent submitted that there were no grounds for the complainant’s allegation of less favourable treatment on grounds of race and/or gender and they further denied all claims of victimisation. They rejected all substantive claims. The position of the WIT was summarised as the complainant” had been deemed appointable” at interview. The college had run 110 interviews in recent years and had not handled one complaint arising either on general matters or on discrimination grounds.

3.2 They presented a copy of the WIT equal opportunities policy and emphasised the extract on selection:

“All employees will be selected, promoted and treated on the basis of their abilities and merits only, and according to the requirements of the job”

3.3 All members of interview panels are given this policy which outlines:

1. The Institute will not tolerate bias against candidates on the basis of the nine grounds of discrimination.

2 Interviews boards will be instructed in good interview practice.

3 Questions will only relate to the requirements of the job.

4 Personal questions will not be asked.

5 Both sexes will be represented at interview.

6 Applicants will be assessed at the end of their interview on pre-set criteria.

3.4 The complainant was employed as a lecturer in the respondent’s school of humanities. She had secured this position through open competition. The position of Assistant Head of Department, school of humanities was advertised on a fixed term contract, on January 11, 2013 with a closing date of 18th January. The job description was submitted which outlined that the school of humanities was the largest school within the college, catering for 2000 students. The primary focus of the post was “programme operations”. The college described their successful candidate as ideally having

· Experience of programme or related administration.

· Experience of the Humanities at WIT or elsewhere.

· Post Grad qualification (preferably a PhD) in a discipline related to subjects within the school.

· Incorporated a teaching role

· Experience of timetabling and of management information systems, IT literacy.

3.5 The interview was held in accordance with established practice laid down in the ministerial regulations made under the Regional Technical Colleges Act,1992.

“Selection Boards shall operate on the basis of unanimity. Only persons deemed fully qualified and suitable shall be recommended for appointment. The selection board may establish a panel in order of merit”

3.6 There were 10 applicants, who, following a shortlist were narrowed to a field of 8. The two unsuccessful candidates at shortlisting stage were both male. Human Resources appointed the panel with input from the Head of School Dr H. The interview panel comprised of:

1 Dr H, Head of School of Humanities

2 Dr M H Head of Department of Applied Arts

3 Mr DC, external appointee, Head of Faculty of Business.

4Ms FB, external appointee

5 Ms C governing body representative.

The 8 candidates at interview were assessed against the headings of

1 Qualifications: level of education obtained, Is PhD present?

2 Experience: relevant work experience

3 Suitability:

The respondent submitted that this suitability heading normally reflects an objective list of the relevant issues matching with the job description, incorporating:

· Appropriateness of the candidate’s experience and qualifications to the post.

· Demonstration of knowledge of the position and positioning vis some vis that knowledge.

· Knowledge of the school

· Capacity to operate in a strategic environment, with a keen sense of operational challenges

· Communication skills at interview

3.6 The respondent submitted that the complainant had submitted an email query on the composition of the interview board to Hr Dept. on January 23rd

“I will be attending the interview at 10.45 on Monday 28th January. Any idea who will be on the panel?”

The response given the next day, January 24th was:

“It is WIT policy not to advice candidates of the panel until their interview “

The respondent remarked that the complainant had not remarked on this response in advance of the interview.

3.7 On the morning of the interview, the complainant made an objection on the inclusion of Ms C on the interview board directly to the Administration staff of the Hr Dept. This prompted the arrival of the Hr Manager who encouraged the complainant to attend the interview. The respondent submitted that there was no evidence of bias against the complainant. The interview proceeded with the complainant and the respondent submitted that ample opportunity was afforded to the complainant to perform well and expand on her qualifications, suitability for the position and experience. Four candidates were deemed by the panel to be suitable for appointment

1 Male

2 Female

3 Female (complainant)

4 Male

The respondent refuted that comments on the candidate’s qualifications as inferior to hers were speculative. The panel was due to expire one year from the interview, i.e. 28th January 2014.

The respondent submitted the markings of Candidate 1 and Candidate 3(complainant) on the panel

The complainant was given these markings on 18th February 2013 and received feedback from Dr H, head of school.

3.8 The respondent defended the inclusion of Ms C on the interview board. The Ministerial regulations require the inclusion of a member of the governing body. The respondent did not dispute the involvement of Ms C in a previous case on behalf of the college but asked the hearing to have regard for longevity given the ten-year gap in time involved and the omnipresence of Ms C on a series of interviews at WIT in the intervening period of time. Ms C was the nominated timekeeper, safeguard of fairness and overseer of consistency in questioning. She was not a decision maker; her role was to endeavour to achieve a consensus between the interview panel members. The respondent confirmed that Ms C had informed the interview panel of a previous equality case brought by the complainant, but they wanted the equality officer to understand that the rationale for this disclosure was to ensure that detailed notes of the interview would be taken. They submitted the 5 hand written pages of interview notes which covered education, experience of management and submission of ideas around the position.

3.9 The respondent has not made an appointment in the position. The successful candidate was informed that the selection process was being challenged and he has remained in his current role. The respondent denied any culture of gender bias at academic or senior decision making at WIT. They submitted that

Assistant Registrar

Head of Estates

Industry Services Manager

Head of Student life and Learning

Head of Marketing

Head of the International Office

Secretary/Financial Controller

3 of the 4 elected members of school board of humanities

Are all female.

In addition, December 2013, HEA figures indicated that WIT had 229.47 wte. (46.9% female academic staff) and 259.77 wte (53.1% male full time equivalent staff.

3.10 The respondent contended that no prima facie case of discrimination either on nationality or race had been made out by the complainant. The respondent also submitted that since 2013, the complainant and Mc C were co-parties on the college governing body.

3.11 Victimisation

The respondent denied the claim of victimisation.

The complainant was given the relevant documentation post interview and availed of feedback from Dr H. The President of the college agreed to the complainants request for an independent review and the college intended to re-run the competition as recommended. The President of the college collaborated with Hr and the complainant in September 2013, however, no agreement was recorded on the composition of the interview board.

The respondent denies victimising the complainant on her return to work after a period of sick leave on October 31. They confirmed a delay in the complainant being notified of her return to her lecturing modules. They attributed this three-day delay to exigencies in the school operations ,bereavement of a senior academic and the co-location of the Head of School On November 11, Dr MH emailed the complainant

“I have been asked to reassemble your teaching allocation for this semester “This was followed by 6 areas of responsibility and a listing of the transitionary cover during the complainant’s sick leave who were to contact the complainant to “discuss the transition”

On November 13th the respondent explained to the complainant that they had been understaffed due to illness but intended on issuing her timetable on that day.

The respondent denied that the interactions between the complainant, Head of School, locum lecturers and the external examiner amounted to victimisation. The respondent sought to reach a resolution that would satisfy the complainant and also ensure fairness to its students. The respondent submitted a series of emails which referred to this period of time concluding on December 5th in an email from the Head of School to the complainant closing off this period.

The respondent referred to case law:

A Complainant V a Dept. store Dec E2002 017

Mary Helen Davis v DIT EE05/2000

The respondent was very clear that the case reflected an unusual set of circumstances where the complainants challenge of her interview led to other difficulties where 4 people were deemed appointable and other people have an interest in the outcome of the case . The reference to the disconcerting affect generated by Ms C is not a valid reason to contend discrimination as Ms Cs role was secondary to the entire panel who could not recommend anyone outside a unanimous approach. The interview board had recommended the complainant for appointment, therefore the complainants assertions did not satisfy the burden of proof in Mitchell v Southern Health Board. In essence the return to work difficulties experienced post sick leave by the complainant were purely operational.

4 Respondents witness submissions:

4.1 Mr O S, Hr Manager confirmed that he had discussed the complainant’s options with her post discovery of Ms C imminent presence on the interview panel. He explained that he had communicated with the complainant by email while she was in the US on the outcome of the Equality experts report.

He had sought to propose a change in the terms of reference to facilitate commentary on the report for all parties. If this had been accepted, then the Equality expert would have reviewed the supplementary commentary. He proposes the changes to the complainant and she refused to agree to adopt the alteration in the terms of reference. The report remained unaltered.

In cross examination, the complainant challenged Mr O S that he had omitted to tell her that she could raise a grievance in relation to her perception of bias against Ms C. Mr O S stated that he advised the pre informal stage of the grievance procedure and that it would be useful to speak to the head of school. Mr OS denied stating that Ms C had “it in “for the complainant. The terms of reference were agreed between the President of the college and Hr. They did not include a brief on making recommendations for the way forward.

Mr O S submitted that the earlier Equality Audit had a positive impact on the college, which had implemented three out of the four categories. There was a discernible improvement in gender quotas across the college.

Mr O S stated that the Humanities Dept. had wished to retain an input in the second interview for the position but that the college had not secured agreement on the composition of the interview board.

Mr O S confirmed that the breakdown of what constituted “suitability “in the interview had not been forwarded in writing to either the complainant or the external equality expert. The practice of marking the candidates was always completed at the end of the process, rather than after each candidate. He understood that the marking scheme for the position had 4 headings rather than 3 and the sheet had to be retained. In response to questions from counsel, Mr O S stated that a separate parallel process was active within WIT in response to the fall out of the interview and this matter was confidential.

Dr M H (Head of Department of Applied Arts since 1999)

Dr H confirmed that he didn’t find anything untoward at the interview of January 28th for the position. The complainant was deemed appointable on a unanimous verdict and placed in third position. In response to questions from the complainant, Dr H stated that her previous cases against WIT did not factor into deliberations at interview. The juris doctorate was a professional legal qualification but did not equate to a level 10 HEA qualification. There had been a brief discussion on Individual Marking criteria before the interview commenced. Suitability was framed on:

CV

Behaviour

Match for the Job

Team Worker

Interpersonal skills

New Ideas

Dr H Head of School of Humanities, 2012

He was the Presidents representative on the interview panel. The chair of the interview Board is not charged with a questioning role. The complainant received the same questions as the other candidates and she was not treated differently by the board. The instant post has not been filled and is the subject to an IR process. The successful candidate has since been appointed to another post and the second candidate moved to the school of education. Two people are still doing an aspect of the post.

In response to questions from the complainant, Dr H denied that the candidates were treated differently based on their PhD, Ed.D. status. He stressed the value added by these post grad qualifications. He saw no difficulty in Mc C as chair of the board as she did not have an active role in selection,

There are plans to restructure the Dept. to having 4 heads of Department active at WIT.Dr H stated that there was nothing ominous about facilitating the complainants return to work in November 2013. There was a brief delay in issuing instructions for the complainant’s locums to cease and her to recommence but this was a college operational issue and certainly not victimisation.

5 Findings and Conclusions of the Equality Officer:

5.1 This is a complaint on the grounds of gender, race and victimisation. Considerable volumes of information were submitted by both parties. I have read and considered all this evidence presented orally and by submission. I have also given extensive consideration to the presentations of the witnesses in addition to the findings and conclusions contained in the Independent equality expert review dated May 28th 2013.

I delayed my decision until I received the final commentary from the respondent . I apologise for this delay.

5.2 I would like to make a number of observations on the case thus far. The complainant has made a number of retrospective references to events that happened to her as an employee in WIT which informed four previous complaints to the Equality Tribunal. I wish to make it clear that my investigation refers to the complaint received by the Equality Tribunal on July 29th 2013 with a reference date of the last date of discrimination being May 28th 2013, when the external review of the interview process was submitted to WIT. I wish to submit that the events underlining the previous complaints be regarded as outside my remit, with the exception of the complainant’s residual perceptions of Ms HC which have clearly remained with her in the intervening ten-year period. I will return to this later.

I am mindful that the period covered by my investigation had a number of antecedent and consequential events. The vacancy at Assistant Head of Department, which evolved when the previous female post holder moved to become Assistant Registrar was not anticipated. The submission of an external Equality review, 2007 which had not been incorporated into an active WIT policy by early 2013 and the commissioning of an external review into the selection process of the 28th January 2013, which forms the core of this case. In addition, the position of the Assistant Head of School remains unfilled.WIT informed the investigation in March 2016, that the panel would be maintained pending the outcome of the investigation .

5.3 Claim for Victimisation

The complainant had framed her complaint by stating that “I believe that I will never be afforded a fair interview process at WIT” This has a tedium and weariness connotation and needs close examination. Complaints of victimisation are taken very seriously by WRC as for the Employment Equality Acts to be effective, people must feel free to make complaints of discrimination without the fear of negative repercussions .

5.4 Section 8 of the Acts prohibits discrimination on any of the nine grounds specified in the Act in relation to promotion. In O’Higgins v UCD,EDA 131 and High Court [2013] IEHC 508, the Labour Court give a useful précis of what needs to be considered when looking at whether a promotion competition is tainted with discrimination:

“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’

5.5 I must decide whether the Respondent infringed the complainant’s rights under the Employment Equality Act rather than adopt a desk top review into the “extent to which details of the rules and procedures set out by the Department have been complied with “A National School V a Worker, EDA 1515. It is not my intention to undermine the Interview board assigned to this competition, but I must examine whether evidence of unfairness in the selection process or manifest irrationality in the result exists?

5.6 The Labour Court referred to the Law surrounding Victimisation in the seminal case of Department of Defence v Tom Barrett,EDA 1017.

The Law

The Court first considered if the Complainant’s claim of victimisation is sustainable having regard to the provisions of the Acts.

Section 74(2) of the Acts defines victimisation as follows: -

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution.

Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. The definition of victimisation contained in that section contains essentially three ingredients. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).

5.7 The complainant has contended that she was the most qualified candidate for the post and lost out on gender, race and victimisation grounds citing her named comparator as Mr D, the successful candidate. There is an obligation on the complainant to do more than assert this, she must prove it to reach the standard test laid down in Section 85A of the Act.

The complainant contended that she was extraordinarily phased by the presence of Ms C on the interview board on the morning of January 28, 2013 and this had a fatal effect on her interview performance. Therefore, by her own admission, she did not perform well, as her recollections of Ms C giving evidence for WIT against her in a 2004 Labour Court appeal came flooding back. It is of note that extracts from Ms C’s discussions with the external equality reviewer confirm a tense if somewhat hostile performance at interview on the complainant’s behalf but equally point to her own residual trauma from giving evidence on behalf of WIT 11 years ago.

I have examined this contention and find that while WIT showed a clear lack of sensitivity in assigning Ms C to this interview process, the complainant had not sought to establish her presence in advance. Instead the question asked on January 23rd from Hr was “Any idea who will be on the panel?”. This could not be reasonably interpreted as a formal objection to Ms C at that juncture.

However, I am satisfied that WIT was aware of the complainant’s difficulties with Ms C, proven or unproven on the morning of January 28th and that by advising her to press on with the interview without the safety net of a formal appeals process being available to the complainant amounted to a serious error of judgement. There are two levels of responsibility at play here. The complainant must be considered as holding a certain amount of personal responsibility for her actions, however, the respondent must also be considered as holding corporate responsibility and vicarious liability for the actions of the WIT under section 15 of the Acts.

I am struck by and place some weight on the objectivity of the Independent expert’s findings in the external review of the process conducted between March and May 2013 where she identified serial flaws in the selection process in terms of lack of transparency in the marking system and marked inconsistencies. The respondent asked me to disregard this report as irrelevant. I find I cannot do this; given that this was an external report commissioned by the college in direct response to the complainant’s objection to the interview. This review must therefore have standing, nexus and relevance.

This report identified that the past equality case history of the complainant was a matter for discussion in advance of the interviews and prior to the identification of the marking system. This fact was not rebutted by the respondent.

Therefore, I find that the complainant has established that a perception of bias against her existed at the interview of January 28th, I find that this is sufficient to ground an inference of discrimination, given that she alone was remarked on this way i.e. she was treated differently, which I find constituted adverse treatment by WIT and its agents. I am mindful of the respondent’s contention that the complainant got a “more than fair interview”. This must be an overstatement.

In determining whether there was age discrimination in the filling of posts in the case of Portroe Stevedores and Nevins, Murphy, Flood Det. No. EDA051 the Labour Court stated:

“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. Finally, it must be borne in mind that the prescribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a “significant influence” ( Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).”

The complainant has described a number of post claim events in support of her case for victimisation .

· The impasse at Information Commissioner level, which she chose not to appeal.

· The accommodation of Candidate No 1 on the panel to a parallel position in the International Office.

· The exclusion she faced on coming back to work post sick leave in November 2013

· The “shelving “of the External equality review.

· The approval issued from Department of Education to fill the position without any members of the initial interview board in 2014, which remains inactive.

· The LRC process concerning some lecturer colleagues cited as the impediment to progress the interviews by the respondent.

In UK Court of Appeal decision in Bexley Community Centre v Robertson [2003] EWCA CIV 576, the court held that events complained of post claim were not sufficiently linked to be considered in a claim for discrimination. In this case, I have examined the sequence of events post the agreement to commission an external review in February 2013. There was full cooperation from HR, the Interview board and the complainant in the compilation of the report. The college had a difficulty in agreeing to run the competition without the senior academic presence from WIT. I can appreciate the relevance of this in terms of the Head of School seeking to be a decision maker in the best interests of the school.

I find that WIT acted reasonably to move the complainant’s dissatisfaction with the interview towards resolution up until it was overtaken by the complainant refusal to engage in their suggested proposal to bring the external report to finality in early July I find that both parties have lost significantly from this development. In the complainant’s corner was a well-executed review which found in her favour. On the college side, they had secured an independently identified action plan for resolution by moving to re-interview and appoint to the position. I find the lack of recourse to the WIT grievance procedure to be unfortunate .

WIT was aware that the complainant was contemplating a complaint to the Equality Tribunal throughout the aftermath of the interview. There was email commentary where this was acknowledged. The college asked for the complainant’s cooperation in the internal resolution. I find that there was scope for the complainant to continue to work with WIT on this issue but and this was brought to an end prematurely by the complainant, which of course was her right, by making her complaint to the Equality Tribunal. It seems to me that all concerted efforts to resolve this situation dissipated following the complaint to the equality tribunal at the end of July 2013.

Given the clear sanction issued by the Department of Education on June 20th 2014, to re interview for the position. I must find that that complainant was exposed to adverse treatment by the failure of WIT to act on this clear instruction.I requested a final comment from WIT on this point on June 20th with a closing timeframe of July 4th .No further submissions were received .

I cannot accept that an LRC process which was not expanded on at to the hearing, or planned restructuring of the Dept. could possibly ground legitimate reasons to defer the appointment of the position in a school of 2000 students within WIT. I have found that WIT has demonstrated a weariness and somewhat intolerance with the complainants clearly combative style, while the complainant has demonstrated a reduction in confidence in WIT which prompted her to challenge her treatment in forensic detail. This is not an enviable situation for either party to be in and in my opinion, will need reflection and attention to avoid the evolution of personality driven departments in the medium to long term. This backdrop is somewhat mirrored in the cases of Commissioner, Garda Siochana v Flynn DEE/9/1998 and MS Z v A Transport Company EE/2007/128 , where victimisation was identified following periods of isolation. I find that the events referring to the return from sick leave in October 2013 to be operational and a by-product of a busy school year actively engaged in exam preparation at Christmas.

However, overall, I am struck and influenced strongly by the lack of action taken by WIT following the clear direction to fill the position in June 2014.

In Monaghan County Council v Roy Mackerel EDA 1213, the Labour Court stated:

“It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker.
Moreover, in a case such as the instant case, the Court must be alert to the possibility of subconscious or unrecognized influence by surrounding events operating on the mind of the decision maker, Nevins, Murphy Flood V Portroe Stevedores [2005] 16 ELR 282).”

I have taken all the circumstances into consideration and I find that the complainant satisfied the test established in Barrett and was victimised in contravention with Section 74(2) of the Acts.Barrett distinguished on outcome .

5.8 Claims of Discrimination on Gender and Race grounds.

The external report also remarked on inconsistencies in markings in terms of qualifications and experience. From my own investigation, I examined the 5 handwritten pages compiled by Ms FB in addition to the cumulative marking sheet dated 28th January as the sole two contemporaneous documents at large submitted to me from the interview. I note that both Ms FB and Ms C referenced an understanding that notes were being compiled by each other on identification of the marking system. These notes were not offered in evidence.

1 Personal qualities, skills and abilities were erased and replaced by “suitability “. This term suitability was not clearly delineated and was perceived in different ways by the interviewers namely Dr H, Mr DC and Ms C in the external review. In the interview, suggested areas of questions, “suitability” was referred to as

· Reasons for applying for post

· Motivation

· Pleasant personality, suitable for people intensive environment

This criterion strikes me as overly subjective and not reflective of a senior academic position at a progressive third level college. Suitability could be permitted to be in the eye of the beholder. Under the heading “why want the job” the notes record “bothers K that there are not more women in management “and “Feels she wants to put her hat in ring “. I find these to be very unusual responses in an interview situation .

2 The documentary evidence clearly depicted that a Juris Doctorate did not equate with a traditional PhD. The complainant scored 17 while the successful candidate scored 15 in this regard.

3 The complainant made it clear in her evidence that she could not remember a lot of the questions that she was asked at interview due to her performance being affected by Ms C. The guidelines for experience in the preparatory document seem to be reflected in the handwritten notes but these are the only notes I have from the field of 8 candidates. The complainant herself did not take any notes after the interview, given that she had the onerous burden of representing herself throughout the investigation and hearing, notes from her own hand may well have proved instrumental.

I accept the respondent contention that the interview panel was compiled in accordance with the pre requisites of the college. However, there was a departure from best practice in the identification of selection criteria in the erasure of a 4 point specified headings to a 3-point process. The rationale for this process was not explained to me in any cogent way. The nett effect of this was contained in the differential in the markings between the top three candidates on the subjective criteria of experience.

Furthermore, the marking system was identified on the morning of the interview, just before the eight interviews commenced. The external expert in equality referenced this shortfall in best practice. In my investigation, the complainant contended that the No.1 candidate had less experience than her in the areas specified in the job description. The respondent rebutted this I must take some direction from the acknowledgement of the respondent that there was a stated intention to restructure the management of interviews on July 5th as an evolving insight into the case at hand. However, these commitments were not acted on.

I find that the complainant has established that

1 That the selection process was lacking in transparency.

2 There was evidence of unfairness in the selection process.

3 There was inadequate retention of interview notes. ( Rotunda and Mater Hospitals v Dr Noreen Gleeson DEE003 , Labour Court ,2000)

4 The complainant assumed that she was appealing the outcome of the interview, while CIT interpreted this as the informal stage of the grievance procedure. There was no clear custodian of either procedure.

The complainant submitted that women are underrepresented in academic management positions at WIT. I am mindful that the previous post holder in the instant competition was female and I am mindful of the ECJ finding in Akankev Freie Hanses stadt 1996 1 CMLR 175 (C-450/93)

Advocate General Thesauri concluded, ‘Formal, numerical equality is an objective which may salve some consciences, but it will remain illusory and devoid of all substance unless it goes together with measures which are genuinely destined to achieve equality, which was not the case in this instance and, in any event, it was not claimed that any such measures were significant. In the final analysis, that which is necessary above all is a substantial change in the economic, social and cultural model which is at the root of the inequalities — a change which will certainly not be brought about by numbers and dialectical battles which are now on the defensive.”

WIT had a wonderful opportunity to advance on its Equal Opportunities footing by incorporating the Equality Audit into policy formation from 2008 onwards. It was not made clear to me why this was overlooked in such a way, given the clear investment into the process. I appreciate that this predated my investigation and I have to settle for a mere comment on this.

I find that arguing the underrepresentation of women as the basis for gender balance has been addressed by the Labour Court in Aon Commercial Services v Sayara Beg EDA 1324

“Mere fact that women are very much in the minority in board positions in Ireland could not be used as a ground for an allegation of gender bias”

I find that I accept the respondent’s contention that the vacancy in the instant case was created by a female who was promoted to an assistant Registrar position at WIT and that 2 out of the top three performers in the instant case were female.

In Sheehy Skeffington v NUI Galway Dec E 2014-078, the Equality Officer found that an accumulation of findings in relation to a selection process for an academic position established a prima facie case of discrimination pending a rebuttal. The respondent in this case denied discrimination towards the complainant by stating that the Candidate marked as No 1 was the most experienced and thus successful at interview. By deeming the candidate as appointable in terms of empanelling her at No 3, they deemed her as included in the successful candidates. Therefore, there was no differential in the outcome of the competition.i.e Her application was successful , albeit not in the order she sought .

This case is therefore distinguished from Sheehy Skeffington I am mindful of the respondent’s contention that had the panel been allowed to run uninterrupted, there was every possibility that the complainant would have been appointed through the process of time. This may well be prophetic given the subsequent alignment of candidates no 1 and No 2 to separate departments since the panel sprung into being. I am mindful of the embargo on promotional posts referenced in the hearing, which of course was bound to lead to keen interest in all opportunities for self development through promotion .

The complainant has an unshakeable belief that she was unfairly treated and treated differently in the interview by the selection board due in part to the residual fraught relationship with Ms C and in relation to the board being more disposed to candidate No 1 on “suitability and experience grounds”. This assertion was not accompanied by documentary evidence of the co competitor’s CVs.

The complainant did not submit an EE2 or EE3 form in the context of her claim, instead she relied on the route of Freedom of Information requests to action her pursuit of key documents exchanged between the WIT management and senior academics at WIT. That was her entitlement to pursue, but I was unable to give her any satisfaction when this route did not prove fruitful and an appeal was not advanced.

I find the omission of WIT in submitting all notes of the interview board to be somewhat misleading. It is clear that there were more notes taken than the five-page handwritten note by Ms FB. There is no provision in this document or indeed in any other document submitted in providing for an individual marking system prior to the accumulation of marks. This is a significant omission, more reflective of poor recruitment practices than discriminatory practice, given that all 8 candidates were exposed to this random practice.

The WIT policy as outlined on submitted selection procedures pointed to markings of interview performance being simultaneously at the end of each interview rather than being pooled at the end of the entire 8 interviews. This practice contributed significantly to the complainant’s sense of alienation and I hope that this practice has ceased at the college.

I find that the complainant has not raised an inference of discrimination in terms of race. However, I find that she has raised an inference of direct discrimination on gender grounds but based on the balance of probabilities the respondent has managed to rebut it.

DECISION:

6.1 I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

· the complainant has failed to establish a prima facie case of discrimination in relation to access to promotion on the race ground, and

· the complainant has not been discriminated against on grounds of gender regarding access to promotion.

· The complainant has been victimised in contravention of Sec 74(2) of the Acts.

6.2 In accordance with Section 82 of the Act, I order the respondent to follow the action plan set down below :

1. That WIT reactivate the competition for Assistant Head of Department of Humanities (3 year fixed term contract) within 4 weeks. That the President of the College nominates one member to the interview board. The remaining members of the panel to be sourced from outside the WIT in consultation with the Human Resource Department.

2. That WIT adopt a Register to enable members of interview boards to declare which candidates they know in advance of interviews.

3. That WIT immediately incorporate the 2008 Equality Review into a live policy with annual reviews.

4. That the criteria relied on by selection boards reflect the current requirements for posts and that these competencies based frameworks are identified at the time of shortlisting and presented to the interview board in advance of the competition.

5. That each interviewer marks based on this competency based framework and all individual and group records are retained for a 2-year period.

6. That WIT establish an internal appeals mechanism for dissatisfied candidates post interview. It may be wise for WIT to form a strategic alliance with other Institutes of Technology for this purpose.

7. Award the complainant €32,000 in light of the gravity of the breach of legislation on Victimisation . This part is redress for the infringement of Dr Moore Washes’ statutory rights and does not attract tax.

____________________

Patsy Doyle

Adjudication Officer/Equality Officer

Verification of Service Form - May 2015.doc 

1. ^th.

2 They planned to hold a new competition in September.

3 They offered to discuss the composition of the selection board with the complainant.

The college then signalled a change planned for selection processes at WIT.

“I had already begun the process of changing our selection process in terms of the introduction of person specification forms which will illustrate at the time of advertising the essential and desirable criteria that candidates should have for the post. In addition, this form will then form the basis of the marking scheme for each competition and also provide relevant information for feedback to candidates”