DEC-E2017-059

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-059

PARTIES

Peter Rosser (deceased)

Complainant

AND

National University of Ireland Maynooth

(Represented by McDowell Purcell Solicitors)

Respondent

File reference: EE/2013/070

Date of issue: 31st July 2017

1. Introduction:

1.1 On the 15th February 2013, the complainant referred a complaint to the Equality Tribunal/Workplace Relations Commission pursuant to the Employment Equality Acts. The complainant was a composer and the respondent is the music department of a third level institution. This case is marked with sadness as the complainant passed away at age 44 on the 24th November 2014. The claim relates to age discrimination, in particular with regard to access to employment where the complainant was interviewed by the respondent for the post of assistant lecturer.

1.2 On the 20th May 2016, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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.

1.3 The complaint was scheduled for hearing on the 24th May 2016. Anne McCambridge, the spouse of the complainant, attended the hearing to advance the claim. She was accompanied by a friend. Barry Walsh, McDowell Purcell Solicitors attended for the respondent and the Director of HR and the Professor of Music attended as witnesses.

1.4 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st 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. Summary of the complainant’s submissions and evidence:

2.1 The complainant made detailed written submissions on the 31st May 2013. They describe the job interview the complainant attended with the respondent on the 17th August 2012. He had applied for the role of assistant lecturer on a one-year fixed term contract. He was subsequently informed that he was not successful and provided with the following marks as feedback: “Teaching C-, Research/Supervision C+, Administration D, Departmental Suitability D and Overall C- not appointable.” After the interview, he learnt the identity of the candidate appointed to the role and concluded that he had significantly more research outputs and teaching experience than this person. The complainant refers to the respondent’s Recruitment and Selection Procedures (2006) and states that the interview panel disregarded these procedures. The complainant points to ten failures in the process that undermined his candidature, including the undervaluing of his research achievements through the direct use of age discrimination.

2.2 The complainant outlines that the respondent did not comply with procedures by only advertising the role on a single website and that it reached contradictory conclusions on whether he met the essential criteria for the role. He must have been deemed to have met the essential criteria at the pre-interview screening, only to be deemed not appointable after interview. The complainant refers in particular to the criterion of “a demonstrable and ongoing record of academic and research excellence.” He states that the successful candidate did not meet this criterion in order to be shortlisted for the role. The complainant raises issues regarding the procedures around the interview itself, for example that the presentation he had submitted was not uploaded and ready to use at the interview. He states that he met the successful candidate on his way into the interview and he remarked on the familiarity of the candidate and the chair of the panel. The complainant emphasises that he has no complaint about the successful candidate. He also commented that the external panel member had travelled immediately to Dublin after the interview, on the same train as he was on. He also raises the composition of the panel, in particular the fact that the external member had ties to the respondent. He states that there should have been a representative of human resources on the panel.

2.3 The complainant addresses the paperwork produced by the interview panel and made available to him via Freedom of Information requests. There were no interview notes provided by the external panel member, despite the fact that he had asked questions during the interview. Only two of the members had used a scoring system and one member’s marks had been heavily scored over. An overall mark of C- was juxtaposed, without explanation, with complimentary remarks about the complainant. The complainant had given a ten minute presentation on the topic of “Delivering fundamental harmony and survey history modules to large classes: approaches to teaching and assessment.” The complainant takes issue with the comments noted by the panel members on his presentation, for example that his suggestions were unrealistic and did not address the practical issues on the ground. He asserts that the panel’s comments illustrate their preference for a candidate who already knew the respondent’s student population. With regard to the questions asked at interview, the complainant states that they were drafted to favour internal candidates. They included questions relating to the respondent’s student population and university administration. He remarks that he was unable to obtain a copy of the pre-agreed interview questions and that there must have been such questions. The complainant takes issue with inaccuracies in the notes of what he said at interview and that they were overly negative. He criticises the lack of any mention to his composing career, his writing, his project management or collaboration with high profile arts organisations. There was no reference to the prizes and awards he has won. The complainant states that the manner in which the respondent considered the Goldsmiths position was most disturbing, in particular that it was “minimal”. He remarks on the lack of any record of their discussion regarding a new music ensemble in the university.

2.4 The complainant asserts that the respondent discriminated against him on grounds of age. He refers to the above-quoted criterion regarding academic and research excellence and takes issue with the assessment of the panel chair that his “academic research output in relation to his career stage was weak.” He refers to panel comments on his lack of experience at university level and this judgment could only be reached with regard to his age. He further refers to his achievements, for example with the JACK Quartet and a publication on Brian Ferneyhough. Despite these achievements, he was judged weak in respect of the qualifications needed for the role of an assistant lecturer. The panel had judged his record as if the complainant was seeking a Professorship. With regard to references, the complainant states that it was unfair that the respondent required three references of candidates prior to interview and this was requested at short notice. The complainant concludes his submissions by asking twenty questions that require investigation. The questions are a summary of the points made above in his submissions and challenge the process and procedures of the interview and candidate selection. They include that the successful candidate did not meet the essential criteria for the role and that no first reserve was selected.

2.5 At the hearing of the complaint, the spouse of the complainant said that her husband was incredibly articulate and would have been the best person to advance this case. She referred to the extensive document that he had written in support of his complaint. The complainant had been badly treated on the day of the interview and the respondent had not followed its own procedures. The essential criteria provided in the job specification refer to a requirement of “a demonstrable and ongoing record of academic and research excellence commensurate with career stage”. In the feedback following the interview, the Professor of Music said that the complainant was weak in meeting this requirement and was scored a “C+”. The complainant had denied that his career stage had been weak and that he had a substantial corpus of research behind him. The age of 41 was more than just a number and the respondent’s reliance on “career stage” was based on age. She said that there was a general problem whereby composers with a life’s work do not get short-listed because of their age. This led to such professionals having to worry about their future.

2.6 The spouse of the complainant outlined that the complainant had been better qualified than the successful, younger candidate. This candidate had obtained a better mark at interview for research, even though they did not have a significant output of research. She outlined that the complainant had been a composer first and foremost, but that he had also begun writing and carrying out research. He had a number of articles published in the Journal of Music between 2004 and 2008. She outlined that the disparity in the marks allocated for research to the complainant and the successful candidate was so significant as to raise a prima facie case of discrimination. She outlined that the complainant had better quality research post-dating his PhD, pointing to 45 such items. The comparator (the successful candidate) had an output of zero. The very fact that Goldsmiths had approached the complainant was significant, especially as the complainant was to prepare a research paper in collaboration with this body. In respect of the interview, the complainant had been disappointed with the low expectations discussed in the interview. He had taught in classrooms with 30 students in one named facility and also taught HND music courses, equivalent to years 1 and 2 of university. The complainant also had experience of carrying out administrative tasks, for example the logistical tasks of putting on an opera. It was further submitted that the respondent had both wrongly applied the process and also carried out the wrong process. The complainant had met the research requirements of the job specification, while the comparator had no similar corpus. There was no evidence of the comparator’s research record. In concluding comments, it was submitted that career stage is a proxy for age discrimination.

2.7 With respect to anonymisation, the complainant’s spouse indicated that the complainant would have wished that the report be issued with the identities of the parties disclosed.

3. Summary of the respondent’s submissions and evidence:

3.1 The respondent submitted that the question to be determined was whether there was evidence of discrimination on grounds of age. It was submitted that this was a general complaint about an unsuccessful application and that no prima facie case of discrimination had been established. The respondent had complied with its processes in relation to the interview and selection. Even if this had not been the case, the decision to choose one candidate over another was not based on age. The concept of “career stage” was to allow the employer to determine the quality of research a candidate had undertaken. It was a proxy for experience and not related to age. It was relatively widely used and done so in this case to assess the quality of research post-PhD. It was further submitted that it was not sufficient to point to a difference in scores (B to C+) to establish a prima facie case of discrimination.

3.2 Referring to paragraph 20 of its submissions, the respondent outlined that the usual approach was to look at research post-dating the PhD, but account was also taken of wider experience. In this case, the panel had looked at the candidates’ PhDs and the quality and amount of work after that. It was submitted that the respondent had provided a detailed breakdown of the reasons for the scores given to the complainant as well as providing the handwritten notes of each of the interview panel. The respondent outlined that there was no wider issue of people not being able to find work years after obtaining their PhDs. The respondent stated that it recruits and selects candidates from all age groups.

3.3 In relation to this case, part of the role was addressing large first year classes of 170 or so students. By their nature, the classes catered for mixed abilities. This was a challenging role as it meant lecturing on theoretical topics to such classes in a lecture setting. The respondent outlined that the administrative tasks associated with the role included preparing tutorial lists, being the Department contact for ensembles as well as chairing and taking minutes of meetings.

3.4 In respect of the Goldsmiths role, the respondent outlined that the level of interaction with this institution was assessed as minimal. The comparator had achieved success after obtaining a PhD and the respondent was also entitled to consider the comparator’s pre-PhD work. The respondent had assessed the candidates’ research according to their career stage. The complainant obtained his PhD in 1997 and was awarded a C+ for his output since that time. The comparator had completed a PhD two years before the interview and was entitled to a B.

3.5 At the conclusion of the hearing, the respondent asked that the report be anonymised in order to protect the identity of the successful candidate.

4. Findings and conclusions:

4.1 At the outset of the hearing, I gave my condolences to the complainant’s spouse and I do so again in this report. The Belfast Telegraph published an obituary of the complainant at the time of his passing and this shows that he achieved a great deal before he passed away at age 44.

4.2 This is a case where the complainant asserts that the respondent discriminated against him on grounds of age when he applied for employment as assistant lecturer in the respondent department of music. At the time, the complainant was aged 41; his comparator, the successful candidate, was younger. The complainant supplemented his complaint form with detailed submissions on the 31st May 2013. The complainant’s spouse relied on these submissions at the hearing, in particular with regard to the question of career stage. The respondent made submissions on the 16th August 2013. Much of the hearing was devoted to considering the concept of career stage and whether it is a proxy for age discrimination or a non-discriminatory tool to assess the relative academic achievements of each candidate.

4.3 The legal test as to whether the complainant had established a prima facie case of discrimination with regard to a recruitment and interview process was laid down by the Labour Court in O’Higgins v. University College Dublin [2013] E.L.R. 146 to assess:

“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.”

4.4 In Moate Community School v Moriarty (EDA0718), the Labour Court assessed the burden of proof in age discrimination recruitment and promotion cases in the following terms:

“In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.

Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.”

4.5 In Sheehy-Skeffington v NUI Galway [2015] E.L.R 95, the Equality Officer held that, cumulatively, the complainant had established a prima facie case of gender discrimination where the complainant sought promotion from College Lecturer to Senior Lecturer. The Equality Officer pointed to such factors as the lack of an agreed marking scheme, the exclusion of suggestions made by the external member, the inclusion of a candidate not eligible to be interviewed, the lack of gender balance on the panel (as opposed to representation), the role of the Registrar in the appeal, the fact that three males scored higher for teaching when they had fewer contact hours, the lack of acknowledgement of the complainant’s PhD supervision work and her role on statutory bodies. The Equality Officer commented that many of the candidates, including the complainant, had not published in high-impact journals. The Equality Officer had regard to the preponderance of female College lecturers but the much higher number of male Senior Lecturers. The Equality Officer held that the respondent had not rebutted the inference of discrimination and found for the complainant.

4.6 In A Teacher v A National School DEC 2014-97, the Equality Officer held that a prima facie case of discrimination on grounds of age was established due to the significant difference in the qualifications of the complainant and the comparator, and the decision of the interview panel to determine that they were equally qualified. The Equality Officer also had regard to discrepancies in the selection process and the overlooking of the complainant’s management role in the school. The Equality Officer concluded that the school had failed to rebut the inference of discrimination on grounds of age.

4.7 In the first instance, it is not my role to determine which candidate was the most suitable, or whether the successful candidate was the right choice. My role is to assess whether the complainant has established facts of such significance that they can be said to raise the inference of discrimination. This may involve assessing whether there is clear evidence of unfairness or manifest irrationality in the outcome. It may also involve assessing the connection between the selection criteria for the job and the outcome of the recruitment process. The overall requirement is to assess whether the selection process was tainted with unlawful discrimination on the grounds of age.

4.8 In assessing the facts in this case, the starting point is to compare the treatment of the complainant and the comparator, who was younger and had recently completed their PhD. I was not provided with the notes relating to the comparator’s interview. The respondent provided the scoring given for each category to both the complainant and the comparator:

The comparator was deemed appointable and the only candidate so designated. The complainant raises issues regarding how he was treated on the day of the interview and what was recorded in the interview notes. He points to elements omitted from the notes. He concludes the submissions by asking twenty questions that need to be investigated.

4.9 The complainant also asserts that the use of career stage in awarding marks in the research/supervision category is inherently discriminatory on the age ground and undermined the respondent’s evaluation of his output. The respondent outlines that it used the concept of career stage to determine the quality of research a candidate had undertaken since obtaining their PhD. The allegation is that career stage was used as a proxy for age discrimination, where the longer career stages of older candidates is used to undermine the level of their output. The allegation is one of indirect discrimination where an apparently neutral provision puts older candidates at a particular disadvantage to others. Where a provision is found to be indirectly discriminatory, the question is whether it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (see sections 22 and 31 of the Employment Equality Acts). In respect of career stage, it is the case that measuring the impact of an academic’s output is the subject of much debate regarding the proper methodology needed to capture a fair and complete reflection of impact. I note the comments and findings of Nosek et al in “Cumulative and career-stage citation impact of social-personality psychology programs and their members” in the Personality and Social Psychology Bulletin, 2010 regarding issues arising in assessing the impact of academic publications with regard to gender and race. I also note the passing references in the Sheehy-Skeffington v NUI Galway case to the h-index as a measure of the academic impact of candidates. There may be an issue in a field such as music where a person on finishing their PhD engages in professional practice (such as composition) to return to academia later. Having considered the submissions of the parties, there is nothing intrinsically discriminatory about assessing a candidate’s output according to the number of years since they completed their PhD. Even where a candidate can show that, as an older candidate, they are at a particular disadvantage due to the use of career stage, the use of career stage may be objectively justified by the employer. The respondent in this case referred to using career stage to assess the quality of a candidate’s output over their career. The use of career stage to assess scholarly output is a legitimate aim. The question then is whether the means used to achieve the aim were appropriate and necessary.

4.10 The first issue to decide is whether the complainant had established facts of such significance as to raise a prima facie case of discrimination. The complainant raised concerns regarding how the role was advertised and how the interviews were conducted. He challenges the assessment made by the interview panel of his academic output, especially when compared to the comparator who he said had “zero output”. There was a difference between the panel and the complainant over the correct approach to teaching theoretical topics to large undergraduate classes. The respondent asserts that the complainant is dissatisfied with the process and outcome of the recruitment process, but that the only issue raised relating to age discrimination is the use of career stage. It denies that career stage is related to a candidate’s age. The respondent provides responses to each of the questions asked by the complainant and asserts that the process was not tainted by discrimination. At the hearing, it acknowledged that its submissions include publications of the comparator candidate that pre-date their PhD (from 2006 and 2008). It also acknowledges that one member of the panel, the external member, did not keep his own notes.

4.11 Having assessed the evidence and submissions of the parties, I find that the complainant has not established a prima facie case of discrimination. I find that the procedural criticisms do not amount to facts of such significance as to raise the inference of discrimination. The respondent has provided an explanation as to why the role was advertised on three websites and why the Powerpoint presentation was not uploaded. Even if the interview process did not run smoothly (the complainant was unhappy with the waiting area and the preceding interviews ran over by 40 minutes), they do not amount to facts of such significance to raise an inference of age discrimination. While there were no notes of the external member of the panel, I note from page 16 of the respondent Recruitment and Selection Procedures that all members of the Selection Board have a joint responsibility in “taking notes to assist the Board with the evaluation of candidates.” I also note that the external member signed the completed marking scheme for the complainant and the comparator. While the complainant was unhappy with the interview panel’s assessment of his academic and professional output, the respondent has provided its explanation for the assessment. Even if the complainant is not satisfied with the explanation, there is no basis to look behind the decision made by the panel because there is no clear evidence of unfairness or no manifest irrationality. Applying O’Higgins v UCD, the difference in marks, of itself, is not sufficient. I note that the panel assessed not only research output, but also teaching and administration. Even if the complainant had obtained a higher score than the comparator (including an ‘A’) in the research element, the other candidate would have still been successful. I note the difference in approach between the panel and the complainant regarding teaching theoretical topics to large undergraduate classes. The fact of this difference of opinion does not, of itself, raise an inference of age discrimination. Returning to the issue of career stage, I find that assessing a candidate’s output according to the time since their PhD pursues a legitimate aim (the assessment of academic output) and that the means used by the respondent was appropriate and necessary. It made its assessment of the output of the candidates. Even if the panel considered pre-PhD outputs of the comparator, I do not believe that this undermines their overall assessment of the academic output of the respective candidates. While the complainant disagreed with the panel’s conclusions regarding his output relative to career stage, the difference in opinion is not sufficient to raise a prima facie case of discrimination. For these reasons, I find that the complaint does not succeed as a prima facie case of age discrimination has not been made out.

4.12 I have not acceded to the respondent’s request that the report be anonymised. The comparator is not identified in the report and is not readily identifiable.

5. Decision:

5.1 In accordance with section 79 of the Employment Equality Acts, I conclude the investigation and find that the complainant has not made out a prima facie case of discrimination on the grounds of age.

____________________________________

Kevin Baneham

Adjudication Officer / Equality Officer

31 July 2017