Complainant

Respondent

Anonymised Parties

Lecturer

University

Representatives

On 04/04/2017

Sharon Dillon-Lyons BL, Niall Walsh of of Peter Connolly Solicitors,

Judy MNamara Ibec,

Representatives

On 13/6/2017

Sharon Dillon-Lyons BL, Peter Connolly of Peter Connolly Solicitors

Darragh Whelan Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00006442-001

12/08/2016

The Complainant was employed as a Lecturer from 1st September 2003 to 9th March 2016. She has claimed that she was discriminated against on grounds of her age, in not promoting her, in conditions of employment and she was discriminatorily dismissed. She has sought compensation.

The Claimant entered a contract of employment with the Respondent in 2003 whereby while completing her PhD research with the Respondent’s School of English she began to deliver tutorials and seminars. The contract which commenced in 2003 was on a fixed term part time basis. The Respondent completed her PhD research and submitted her thesis in September 2006 and thereafter graduated in 2007. The fixed term contracts were renewed to facilitate the Claimant’s delivery of tutorials as required. In 2008 the Claimant commenced a full time contract (also on a fixed term basis) following the award of a postdoctoral research fellowship on a project within the School of English. That fellowship ran for one year after which point the Respondent’s terms and conditions of employment returned to their pre 2008 requirements and the Claimant continued to deliver tutorial sand seminars within the School of English. The Claimant also worked with the Centre for Academic Practice and Student Learning (CAPSL) within the Respondent organisation. In 2011 the Claimant was appointed on a six month adjunct lecturer post within the School of English. In addition to the extensive teaching experience gained by the Claimant over the 13 years employed by the Respondent, the Claimant was twice nominated by students for a Teaching Award and further she has been awarded, by open competition selection, three international travel bursaries to conduct research in Toronto, New York and Oxford respectively. The Claimant is the President of Irish Society for the Study of Children’s Literature, a position she has enjoyed since 2013. The Claimant’s contractual relationship with the Respondent was marred by a lack of permanency or career development potential. The Claimant’s fidelity to the Respondent organisation was met with disorganised and disinterested engagement in respect of her conditions of employment. The renewal of her contracts of employment where haphazard and experiencing almost no notice as to the continuance of employment was not an unusual feature of the employment relationship.

In seeking a degree of stability the Claimant applied for several posts with more anchored tenure within the School of English. In July 2015, the Claimant applied for the post of Assistant Professor in Irish Studies. The Claimant was not appointed to the post but was shortlisted and progressed to the interview stage of the application process. The Claimant was disappointed not to have been successful in that competition but appreciated the subject matter of the post might have been better met by other candidates. The Claimant was heartened to note that a position was available which sat squarely within her field of expertise. The Claimant applied for the Assistant Professor post in Children’s Literature post. The material submitted on behalf of the Claimant substantially mirrored the submissions made in respect of previous competitions. The applicant was not shortlisted for interview. The applicant was extremely disappointed and confused that she had not reached the threshold of shortlisted applicants in circumstances where same had been met only some months earlier in respect of a post with a more remote relationship with the Claimant’s expertise. Where the applicant’s authority on her expertise field had been greatly undermined by the decision not to shortlist her, the Claimant emailed her Professor in the School of English, stating that in light of not being shortlisted she saw no point in continuing with the semester’s teaching. No response was received. Five days later the Claimant was contacted by a colleague who had been offered the Claimant’s teaching hours. The Claimant considered her post to have been terminated by the Respondent where her contracted hours had been reassigned. It is submitted that the constructive dismissal occurred on 09/03/2016.

The Claimant submits that her treatment by the Respondent was discriminatory in that she was directly discriminated against on the grounds of her age whereby the Respondent has exhibited a preference to award full tenure post to younger applicants, typically post-doctoral where the applicant had enjoyed a continuous stream of tertiary education since school leaving age. In general it is evident that the posts are awarded to persons in their second or early third decade of life. The Claimant submits that practice is evident by reference to the age demographics of employees on fixed terms contracts, providing ancillary educational supports on a rolling basis compared with the age demographics of candidates awarded permanent or tenured positions. It is further submitted that the marks awarded in the competition are meaningless and prescribed in manner devised to frustrate the Claimant from attaining the shortlist threshold. In particular the Claimant’s marks for teaching experience when compared with the marks attained in the previous competition are instructive where on a are pro rata basis the Claimant attained 96% of available marks in the June competition when compared with 70% of available marks in the December competition. It is also the case that this competency is objective without post specific requirements. That apparent reduction in skill as observed in the Respondent marking scheme occurred over a six month period where the Claimant continued to attain teaching experience with the Respondent. It is submitted that it is irrational and supports the claim that there is a prima facie case of direct discrimination as against Claimant by the Respondent.

Furthermore the comments made in respect of the Claimant’s relevant criteria show a disregard for the material submitted by the Claimant. No reference is made to the extensive academic and publication experience of the Claimant. Those succinct comments state that “not all work rel.” whereby the assessment appears to have ruled out the submitted experience with no rationale as to why the work is not relevant and further in the absence of an assessment of the relevant experience submitted. Reference is made to the Claimant’s extensive relevant experience.

The final submission in respect of the marks awarded is the observation that in respect of the competence at criterion 6 the Claimant appears to have been awarded just 50% of the available marks for her ability to work as an effective team member and her ability to contribute to the Discipline and School of English. Notwithstanding the fact that no comment relates to this poor grade and its justification, the Claimant was a person who had at that time been employed by the Respondent for 13 years. It is apparent that the Respondent appears to claim that her skill in respect in that criterion is sufficient to merit the award of continuous fixed term contracts but insufficient to carry out the same work in a more stable contractual framework. The impact of that criterion assessment on the Claimant was to suggest that she was not valued by the Respondent organisation and further that her post was not tenable. It is submitted that the mark is arbitrary and irrational and further demonstrative of discrimination against the Claimant.

Secondly the Claimant submits her treatment is indirect discrimination for the purpose of section 22 of the Acts in circumstances where the teaching experience of other candidates in institutions outside of Ireland is disproportionately rewarded in the marking criteria utilised. That is to say, persons whose experience was on par in terms of courses taught or number of years of experience received higher marks by reference to the fact that they were employed in non-Irish institutions. The Claimant is by reference to her age not is a position to acquire academic experience outside of Ireland where she has significant family ties established in Ireland and further where her family home is in Ireland. In that respect the policy of rewarding experience abroad disproportionately impacts the Claimant a result of which results in indirect discriminated.

Case Law

The Claimant relies on the decision of the Labour Court in O'Halloran v Galway City Partnership EDA077/2007 in which the Court stated that it is only where an individual with better qualifications related to the position at issue is passed over in favour of a less qualified candidate, that an inference of discrimination can arise. The Labour Court provided: “Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38; [1980] IRLR 193). However the qualifications or criteria which are to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”

The burden of proof required to be displaced by the Claimant in demonstrating the Respondent had a prima facie case to answer has been considered in the case of Moate Community School v Moriarty.. In that case, the complainant alleged that he had been discriminated against on grounds of age when he had been unsuccessful in his application for promotion to Assistant Principal. The Labour Court acknowledged that in many cases it can prove difficult to prove age discrimination and commented on the type of evidence which will satisfy the burden of proof in this area: “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.” It is submitted that the Claimant had been treated less seriously than comparators where the Claimant’s academic record and teaching experience were not viewed as on par with comparative applicants. No justification is apparent in the Respondent’s decision to treat the Claimant less favourable in this instance. The Claimant submits that the Respondent organisation harbours a culture of age discrimination whereby persons in a similar age bracket to the Claimant are routinely provided rolling fixed term contracts and treated as “a safe pair of hands” for the delivery of tutorial and teaching hours not catered for by permanent staff members if and when such requirements arise. There is no interest taken in the career progression of persons in this age bracket which includes the Claimant. They are, using the wording of the Labour Court, not treated seriously. That is evident in two respects. Firstly that notwithstanding the application of section 9 of the Fixed Terms Workers Act 2003 and the de facto entitlement of the Claimant to a contract of an indefinite duration, the Claimant was never, over a 13 year employment relationship offered a permanent post. It is submitted that the variation in tutorial and seminar hours year to year does not objectively justify the policy of the Respondent in using fixed terms contracts. Such needs could absolutely have been considered in the terms of a drafted contract. Secondly it is submitted that the Claimant was expected to do her job without the resources allocated to other persons within the School of English. This included her meeting students in corridors where no office space was allocated.

Finally it is submitted the culture of unequal treatment is evident against the backdrop of the Respondent organisation’s Performance Management Scheme. That scheme is a mandatory human resource requirement for all staff members In accordance with the provision of the current Social Partnership Agreement, Sustaining Progress, and the previous agreement, the Programme for Prosperity and Fairness, the College is required to implement a ‘Performance Management Scheme’. The Respondent’s statement on this scheme is as follows; In accordance with the provision of the current Social Partnership Agreement, Sustaining Progress, and the previous agreement, the Programme for Prosperity and Fairness, the College is required to implement a ‘Performance Management Scheme’. This requirement was also established as part of the Public Service Benchmarking exercise. In line with the agreement, the College’s Partnership Committee has facilitated the development of a Performance Management and Development Scheme (PMDS) for the College. Central to the development of the scheme is the need to meet the development needs of staff across the College, improve performance by enhanced understanding, enhanced quality, and promoting a culture of continuous improvement throughout the College.

And; The key principles which underpin the Performance Management and Development Scheme (PMDS) within a college context are as follows; 1)Development of staff to reach their full potential, 2) Self review/self-assessment, 3)Two way Review,4) Enhancement of Quality, 5) Promoting Equality

Strategic Planning/Alignment (section 1.2a); Principle of Academic Freedom(section 1.2b)

(a) Developmental: The PMDS acknowledges the responsibility of both staff and management in the joint planning of career development. Individuals are provided with the opportunity to consider their development needs for their future career plans through the establishment of developmental objectives.(b) Self-Review/Self-Assessment: The PMDS is a structured review process which recognises that it is individual staff members that need to drive their own performance and development. In order for the review system to work effectively, individual staff members need to take ownership of the process and self-assessment/review will be pivotal to achieving a sense of ownership and participation. Without self-assessment/review there can be little benefit to the individual in terms of identifying strengths and areas that need improvement. (c) Two-way Review: Communication is an essential element to the success of a Performance and Review Scheme. The PMDS opens clear channels of communications and promotes ongoing two-way feedback between the ‘Reviewer’ and the ‘Reviewee’. The 2007 cycle of PMDS will include a formal two way review component. (d) Quality: The process of PMDS holds closely the core principles of quality assurance in that it is intended to promotes a process of continuous improvement at an individual, unit and College level through a mechanism of self-assessment. The scheme provides an on-going opportunity for each unit and staff member to reflect upon his or her contribution to the College and provides a means to improve upon this contribution within a developmental framework. (e) Relationship to other College Policies and Procedures: The PMDS is a developmental tool which is intended to improve performance. It is separate from and should not be linked to other College policies such as promotion, pay, reward or the disciplinary procedure. The implementation and conduct of the Performance Management and Development Scheme process will be carried out with full regard to the College’s Equality Policy. Notwithstanding the bare assertion that the promotion of equality is a key principle in the above referred statement, no guidance is provided in respect of attaining or acknowledging that key principle. It is certainly the position of the Claimant that the performance review procedures were not applied to her over the 13 years of her employment with the Respondent.

Reliance is placed on the decision of Revenue Commissioners v O'Mahony EDA033 which is an authority for the drawing of inferences of discrimination where there has been a significant statistical difference in success rates for persons in different age groups who were otherwise equally qualified.

Conclusion

The WRC is on notice of an extant appeal with the Office of the Information Commissioner in respect of an access request made by the Claimant pursuant to the Freedom of Information Act 2014. Correspondence in respect of that application is available to the WRC in the Claimant’s papers. That claim arises is respect of the Respondent organisation frustrating the Claimant’s statutory right of access in respect on records held. These submissions are made strictly without prejudice to further submissions which may be required following the determination of that appeal and access to relevant records.

SUPPLEMENTARY SUBMISSIONS ON BEHALF OF THE CLAIMANT

Claimant’s complaint of indirect discrimination at the hearing of the within matter and did not make submissions in that regard despite the attendance of persons in a position to give evidence as to the considerations of the shortlisting committee.

1.       The supplementary submission by the Respondent attaches the shortlisting score sheet in relation to the relevant competition. That score sheet was already produced before the WRC on the day of the hearing, essentially it is not new material and was before all parties at that hearing. The Respondent has sought to make the following observations in relation to that document;

“The teaching experience as set out in each applicant’s curriculum vitae and cover letter was scored against this criteria. The Shortlisting Committee did not apply a special weighting or premium to teaching experience attained in non-Irish institutions”.

2.       They have asserted their position in explaining what weight was not given with no clarity as to what weight if any was given to teaching experience in academic institutions outside Ireland. Nor has any evidence in support of that bare assertion been submitted by the Respondent. At the very least the Respondent ought to, in discharging their burden in relation to the claim, articulate what weight was given to the various candidates respective professional experiences. It would appear that the Claimant is invited to disprove a negative contention with no detail as to the relevant criteria asserted to have been applied. That is an obviously unfair and indeed bizarre request. It was at all times open to the Respondent to particularise the qualities sought and rewarded in response to the successful shortlisted candidates. The Respondent has elected not to furnish that detail. It is simply stating, with no supporting evidence, that the process did not reward experience in international institutions.

3.       It is submitted that the Respondent confined the premium attached to experience in international institutions, or would have confined that premium had that premium existed or been applied which the Respondent asserts it did and was not, to Criteria 3. There is no evidence, without the Respondent having produced same at the hearing which it did not, that experience in institutions other than those in Ireland would in fact be exclusively considered under Criteria 3. It is further submitted that a logical interpretation of the albeit broad headings attached to those criteria suggest that professional experience in institutions outside Ireland would not be confined to consideration within criteria 3. It is noted that criteria 1, 2, 4 and 5 respectively all permit consideration of professional experience in institutions outside Ireland. The redaction of the shortlisted candidates feedback/comments sections prohibits analysis in this regard.

It is further submitted that the assertion claimed by the Respondent, that international experience was essentially not considered is logically inconsistent with its own comments on the type of lectureship central to the relevant competition. The following comments are from the Respondent’s own publication on its website and it highlights the international canvassing for candidates for posts applied for by the Claimant. That text reads in part ;

College Begins Global Recruitment Campaign for 40 New Academic Posts 16/10/2015

“The recruitment of these new posts across the university will build academic capacity to develop new educational programmes. We have identified the posts most crucial to executing our mission, and attracting talented people from around the world who will foster global engagement in education and research.” [emphasis added]

“This is part of our strategy to recruit excellent academics in areas where Trinity has strengths. There will be opportunities across our fields of expertise, which span from Science, to Engineering and from Medicine to the Arts and Humanities. Our objective is to attract new talents from around the world to further the College’s position of excellence.” [emphasis added]

One of the criteria was that Schools appoint mentors because these lectureships are specifically intended for academics at the start of their careers. We're extremely grateful to the mentors – and I'm sure the mentors, in their turn, are greatly enjoying the experience of “communing” with younger experts in their disciplines. [Emphasis added].

So the Respondent acknowledged at the hearing that this lectureship was different to an ordinary post in the qualities it sought in candidates. It is submitted that these lectureships championed young candidates, fresh-blood and those with international experience. Those are terms connected with the competition by the Respondent in public statements. It is manifestly the case that those qualities allowed for the direct discrimination against the Claimant and furthermore the obvious premium placed on international experience caused her to be discriminated against indirectly on the grounds of her age. It is not credible that the Claimant’s age and lack of international experience were not considered despite the baseless claim made by the Respondent in their supplemental submissions.

It is respectfully submitted that the WRC find the claim well founded and award the Claimant compensation commensurate with the finding as per section 82 of the Employment Equality Act 1998 as amended.

Prima Facie Case of Discrimination

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”2.4             The College submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the College to rebut the inference of discrimination raised. The College submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Background to the Complainant

The Complainant commenced delivering tutorials to students in 2003 while completing her PhD research with the English Department of the College and continued to do so in the capacity of Tutor and Lecturer, on a part time contract until 2010. In 2006 the Complainant completed her thesis and subsequently graduated in 2007. From 2008 to 2009, the Complainant was employed with the College on a full time basis in the role of Postdoctoral Researcher on a specific project in the Department of English, following which she continued to work with Department of English and also with The Centre for Academic Practice and Student Learning at the College. In 2011, the Complainant was appointed to the position of Adjunct Lecturer, which was a six month role in the School of English at the College Dublin and in 2015 was offered and accepted a role teaching an advanced undergraduate course for the academic year while at the same time delivering courses at postgraduate level. The Complainant, while engaged as set out above, was also a part-time Literature Tutor since 2002 to the present date, at the Open Education Unit at another University. In addition, she held roles at another named University from 2011 to 2015 in the capacity of Part-time Teaching Fellow, a named Institute, and Part-time Academic Developer, Centre for Teaching and Learning from 2012 to 2014.

Background to the claim

In December 2015, the position of Assistant Professor in Children’s Literature was advertised. This post was part of a national and international campaign to recruit 40 Assistant Professors into different specialist areas of the college. The Complainant was one of the applicants for the post. The Complainant’s application was submitted in January 2016. The College’s protocols for Recruitment are specified in detail in the Human Resources Recruitment Procedures. Clause 4 of the Procedures addresses the composition of Selection Committees and Clause 4.3.2 deals specifically with the composition of the Selection Committee in relation to recruiting for the role of Assistant Professorship, for which the Complainant had applied.

In this particular case, the Committee was comprised of the Chair and Dean of the Faculty of Arts, Humanities and Social Sciences, Head of the School of English, Assistant Professor of English, Assistant Librarian and the Assistant Professor of Psychology. The External Assessor in this process was from a named University. All members of the selection committee completed the Living Equality and Diversity (LEAD) online training programme, specifically developed by the Irish Universities Equality Network to provide staff with an awareness of the key equality and diversity issues in a university context. The internal committee is charged with drawing up a shortlist of four candidates, following which the shortlist is then ratified by the external member. In each case, objective grounds for the decision to shortlist or not are recorded and made available to the applicants upon request. The decision to shortlist is based entirely on the materials submitted by the applicants. The Complainant’s application was assessed and scored by the six-person Committee, along with 23 other applicants against 5 marking criteria. Her total score of 66 and ranked 8th in the shortlist. The top four applicants ranked were called for interview. The Adjudicator is asked to note in particular that applications submitted do not contain any indication of Applicants’ dates of birth. As such, the Committee could not be aware of the ages of any Applicants.

Complainant’s arguments

The Complainant’s claim, as set out, outlines the following:

i) ‘I sought feedback in relation to the decision not to shortlist my application’ (It is worthy of note at this juncture that the Complainant did not seek feedback until after her   written resignation from the College). ‘I note that the scores awarded to my application appear entirely arbitrary. My experience, having gained relevant skills over the previous 7 months, was marked lower than the previous competition in July 2015. I was not shortlisted on account of my age.’ ii) There is a culture of awarding fixed term contracts on a casual basis to persons in a similar age demographic to my own. Candidates awarded permanent posts are typically in their late twenties, post qualification with some external experience. iii) Further to the direct discrimination on age, the Department places a disproportionate metric value, for the purposes of shortlisting, on external experience. It is more difficult or impossible for a person such as myself, who was a mature student at the commencement of my academic career, to teach for a couple of years in UK universities when I have commitments in Ireland such as my family. iv) It is apparent that the marks awarded in the shortlisting process are self-serving in order to appear that a transparent and accountable system has been adhered to whereas my treatment in the shortlisting process and throughout my career with the Respondent demonstrates that younger candidates are preferred for permanent posts.

College’s arguments

It was with some surprise that the within claim was received by the College, in the circumstances, for the following reasons: i)         The Complainant had been advised by email from HR on 15th February 2016 that she had not been shortlisted in her application for the position of Assistant Professor in Children’s Literature. On 9th March 2016 however, at 18.55 pm, without        warning or notice she furnished an email to the Professor which read:            ‘Having been told by HR that I am not good enough to be shortlisted for the              professorship in children’s literature, I see no point in continuing to teach in the School of English, so won’t be back to finish this semester.’ ii) The Claimant did not return to the College company after furnishing the email of 9th March , notwithstanding a message from one of her colleagues   enquiring if she was all right, to which she responded‘I’m grand thanks’on 10th March. In addition, an email was furnished to the Complainant the following Monday, 14th March, from the Professor, indicating his regret at the Complainant’s position but offering the opportunity to sit and talk about the situation. iii) A very lengthy email was received from the Complainant on 15th March to the Professor, containing a number of allegations and complaints, of which the College had not been advised previously. This communication, at the final paragraph, states clearly and unambiguously: ‘On deep reflection and after 15 years in the School of English, I finally realise that I have no future here’. iv)    The Complainant’s departure on 9th March 2016 was sudden and unexpected and had a significant impact on a number of her students. Prior to her resignation, the Complainant removed her courses from the Blackboard system used by the College. v) In effect, the Complainant’s resignation from her role amounted to abandonment of                 students in Week 9 of a twelve-week teaching term, at a crucial time when her students were commencing preparation for final assessment. Apart from this direct prejudicial impact, her removal of courses from the system further served to impair the urgent attempts by the College to provide alternative tuition to the affected students. vi) A number of emails which evidence the disarray and difficulties caused by the Complainant’s actions in resigning on 9th March, and by her removal of her courses from the system,. The same also                evidence the difficulties and actions which the College was obliged to undergo while attempting to provide alternative tuition in discharging its duty of care to its students. The Equality Policy clearly sets out the College’s commitment to promoting equality and non-discrimination in all aspects of its activity. In furtherance of that commitment, the Board of the College comprises, inter alia, a              formal Equality Committee, being a Principal Committee of Board, with staff and student representation, charged with responsibility for the development and monitoring of policies and practises in relation to equality. The College employs a full time Equality Officer who is Secretary to the Equality Committee and a Director            of Diversity and Inclusion with the focus on ensuring equality and diversity is embedded in all College planning processes, actives and policies. In particular, the Equality policy contains a clear and concise outline of the Equality Policy ‘Queries and complaints’ Procedure, which the Complainant failed to invoke at any stage. The Complainant chose to resign her position on 9th March 2016, some 21 days after being advised by Human Resources that her application had not been shortlisted. This action was taken without any attempt by the Complainant to clarify the reasons why she had been unsuccessful in her application or without seeking to initiate a complaint under the College’s grievance procedure. In addition, the Complainant now seeks to rely on feedback information she received in relation to the competition for Assistant Professor in Irish Studies she was shortlisted for in July 2015, in support of the within claim of discrimination on the grounds of age. Again, the Complainant did not seek to progress a complaint or invoke the College’s grievance procedure at the time. In the circumstances, it is the College’s position that the Complainant has failed to provide primary, or indeed any facts, in relation to the age ground claimed, on which to proceed with a viable complaint. The established Labour Court practice        is to expect that the Complainant will in the first instance succeed in transferring the burden of proof to the College by presenting primary facts on the grounds claimed. The Complainant has not done so and has therefore failed to establish a prima facie case to be heard. The Complainant has not demonstrated that she was unsuccessful in her application           for the role of Assistant Professor due to her age. It is the College’s position that the Complainant was unsuccessful in her application for the role as she was not the best candidate, in relation to the role of Assistant Professor in Children’s Literature (January 2016) and in           relation to the Assistant Professor in Irish Studies role (July 2015).It is the College’s contention that review of both competitions will confirm that the assessments of the Complainant were fair, reasonable and transparent; in accordance with the College’s equality and recruitment procedures; and do not support the Complainant’s claim of discrimination by reason of her age. In the event, however, that the Adjudication Officer deems a prima facie case to have been established by the Complainant, the College respectfully submits the Complainant has failed to prove that she has been treated any less favourably than another person is, has, or would be treated in an a comparable situation on the grounds specified in section 6(2)(f) of the Employment Equality Acts 1998 to 2015 Consequently, the claim must fail. The College’s commitment to ensuring fair procedures and transparency, in recruitment and selection for available roles is directed, and governed by a number of documents in the within booklet, as follows: i) The Equality Policy. In particular, at Clause 4.1 under the heading ‘Recruitment and Selection’, the policy is absolute in its guiding principles in relation to recruitment and selection.                 ii) The College’s ‘Human Resources Recruitment Procedures’ document, at , is a comprehensive and in-depth outline of the purpose of the recruitment procedures, outlining in detail the scope of the policy together with procedures and processes utilised in approval of appointments, composition of selection committees, selection committees in the various college units, principles governing the work of Selection committees together with extensive clarification of methods and practises as regards interviews, external Assessors etc. It is clear then, that all candidates who submit applications for an advertised role are subject to the same transparent process. The College operates the same marking scheme, shortlisting and interview criteria for all such candidates, in accordance with the policies and procedures.   In addition, notwithstanding the stringent procedures provided for by the College, no candidate’s age could possibly factor into the assessment committee’s consideration of applications because they would not be aware of a candidate’s age or indeed personal status or gender. Again this is evident from review of the Complainant’s application form. Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of grounds, in this instance age, for such treatment. Both elements must be satisfied for a claim of   discrimination on the ground(s) claimed to succeed. The Complainant has adduced no grounds to imply discrimination. As stated previously – the mere fact that the complaint falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. It is further respectfully submitted by the College that the Complainant has provided no evidence via comparators that the treatment she received was less favourable to her than to any other person or persons. Thus, the Complainant has provided no evidence of discrimination as required for a viable complaint under the Acts. is evidence of the application of the College’s rigorous and visibly transparent recruitment procedures in the competition for the Assistant professor in Irish Studies post (in July 2015), in which the Complainant was ranked 2nd following interview. If the 1st ranked candidate had not accepted the offer she would have been offered the position. The ages of candidates are never available to a selection committee and are wholly irrelevant in the selection process. Equality Monitoring Reports have been published by the College on its website on an annual basis since 2006/07, with all previous reports available online. Each report constitute a snapshot of the diversity profile of staff and students in the College, with particular focus on the nine grounds for discrimination in Irish equality law but also examining other diversity aspects such as socio-economic and regional background. The fundamental purpose of the report is to provide an evidence base for strategic action by the College and its constituent offices to promote equality, diversity, and inclusion. The age data in the Equality Monitoring Reports comes directly from Core (Q Age),.              It gives a snapshot of the age of all College staff on the day the report is downloaded. The age representation of total staff and the five year trend is set out on page 46 of                 the 2015/16 Equality Monitoring Report. Indicative data in relation to the age of applicants to recruitment competitions over the period 1st January 2015 to 1st January 2016 is set out in page 70 and 71 of the 2015/16 report. The information was provided via the Diversity Monitoring Form, a voluntary, confidential module in the e-Recruitment process. 49% of applicants completed the age question. The below report shows the age range of new Assistant Professor appointments by faculty in the period from 1st January 2016 to 31st December 2016.

Section 6(2)(f) provides that as between any two persons, the discriminatory grounds are, inter alia: that they are of different ages

It is the College’s position that this is not the case; The College’s procedure is consistent in circumstances where candidates submit applications for posts – the Committee charged with shortlisting candidates are never provided with dates of birth of applicants. The Adjudication Officer’s attention is drawn to Co Louth VEC v Don Johnson (EDA0712) (supplementary documentation provided) in which, although                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         recognising the differences with the instant case, the Court stated: “The mere fact that a younger employee and an employee of a different gender was promoted in preference to the Complainant could not in itself constitute a basis upon which discrimination on the age or gender ground could be inferred. It would be necessary to show that the Complainant was better qualified or met the criteria for promotion to a greater degree than the younger/female successful candidates. In that regard it is normal for the employer to determine the qualification or other criteria for promotions. The Court could only intervene if the qualifications or criteria selected were such as to be either directly or indirectly discriminatory. The Court has consistently stated that it is not the responsibility of this Court to decide who the most meritorious candidate for a position was. The function of the Court is to determine whether the gender status or the age of the complainant influenced the decision of the employer.” The College selected five marking criteria to measure candidate’s suitability based on their CV and cover letter. The selection criteria and marks were supplied. The same criteria and scoring method was utilised for all candidates. On examination of the criteria and selection method, no elements of direct or indirect discrimination are evident. The criteria selected are a fair and objective means to test a candidates’ suitability to the role and were applied equally to all candidates. In this regard, the Complainant has failed to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them in this instance.In O’Halloran v Galway City Partnership (EDA077) (supplementary documentation provided), the Labour Court stated: “Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or a criterion which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.” The Labour Court has determined that an inference of discrimination can arise if a better qualified candidate is passed over in favour of a less qualified candidate. The College contends that the best qualified applicants were shortlisted for the roles based on the competencies they demonstrated in their CV and cover letters and the age did not and could not form any consideration in the decision making of the Selection Committee as is evidenced in the shortlisting matrix.

Supplemental submission

The Complainant has asserted that indirect discrimination is evident within the   marking criteria as set out in the Shortlisting score sheet. It is well established in case law (as provided for in the University’s original submission) that      the burden of    proof lies with the Complainant in the first instance to provide facts from which an inference of discrimination on the ground of (age) can be raised. The University notes that the Complainant has failed to provide any facts whatsoever in relation to a        named comparator that might infer that discrimination has occurred but has instead insisted that it is the University’s obligation to rebut an inference of discrimination based on the scant and frivolous allegations presented by the Complainant’s representative which have not been backed up by any evidence whatsoever. In particular, the Complainant’s representative has failed to demonstrate why they believe the marking criteria has not been applied consistently for all candidates and how that is linked to the Complainant’s age. The University therefore contends that the Complainant has failed to satisfy the burden of proof.

The Complainant’s representative has alleged that the University has given extra weighting to candidates who have gained international experience but has failed to provide any details of who exactly has been awarded these marks, the details of this person’s age, the details of the international experience they have allegedly gained, and most importantly, how the marks were allegedly distributed to reflect such experience. The University reiterates that the burden of proof lies with the Complainant to provide such facts before an inference can be made which the University notes, the Complainant has failed to do at the adjudication hearing, original submission, and supplementary submission. The Complainant’s representative has alleged that, due to the Ussher competition having an international scope, automatically signifies that a stronger weighting is given to international experience. The University finds this allegation preposterous and nonsensical. The University prides itself on hiring the best talent to provide the        highest quality education to their students and prides itself in its ability and track record of developing academic talent from within its University. Under no circumstances would a reputable university such as Trinity College Dublin deem the                 standard of experience gained within an Irish university to be any inferior to that                 obtained in a non-Irish institute. Irish institutions, including Trinity College Dublin, have produced some of the greatest minds and brightest academics over the years which is testament to the ability for academics within Ireland to gain the necessary qualifications, research and teaching experience, and produce academic publications to the highest standard to allow them flourish in any academic environment worldwide. The very nature of a competition being of international scope does not infer a preference on the University’s part for international candidates by the virtue of them being international, but displays a positive initiative that allows the University select the best candidates from a wider range that closest meets the competencies selected, which as we have seen in the Shortlisting score sheet, contain                no reference to international experience. The Complainant’s representative has referred, in items 6 and 7 of their       supplementary submission, to the 2011 Ussher Recruitment Drive.  That particular            drive of 2011 consisted of completely different positions five years ago and bears no      relevance whatsoever to the 2016 Ussher competition. The 2016 recruitment drive was in respect of 40 new positions, all with new requirements, as set out in their individual job specifications. The advertising campaign for both 2011 and 2016         recruitment drives was extensive, targeting multiple media sources in Ireland, Europe and internationally however academic posts outside of the Ussher campaign are advertised in local Irish print media and online jobs boards, which are accessible worldwide, as is the case with all externally advertised roles.

The Complainant’s representative makes reference to a speech made by the Head of the College in 2012 following the 2011 recruitment drive in item 7 of the Complainant’s supplementary submission. The University contends that the Complainant’s representative’s attempt at scrutinizing a speech made in 2011 does not constitute facts from which discrimination can be inferred with regards to a totally separate competition which took place in 2016 and is more akin to an effort of trawling for irrelevant information in an attempt to piece together an argument. The University does not believe that this suitably meets the bar which is set to discharge the burden         of proof. It is important to note that neither the Head nor the Deputy Head at the time were part of the shortlisting or interview panels for the posts in    2011 or in 2016. As such, they would not have seen any of the candidate applications for any of the competition and would not, and could not, have had input into decision making on shortlisting or interviews.  In addition, the College does            not know the nationalities of applicants until they accept a position following interview and provide proof of identification. In his welcoming address to the Lecturers in 2012, the Head was pleased to have successfully created and filled 40 new academic posts in the university. The “new blood” terminology associated with these Lectureships arose against the background of a government imposed employment control framework since 2009, which limited the capacity of the College, and indeed all public service employers, to                 attract talent. In his welcoming speech, the Head was expressing his pride in managing to recruit 40 Lecturers within the context of this severely restricting hiring environment. The terminology “new blood” is not synonymous with youth and is interpreted as any introduction of new staff designed to bring new ideas and enthusiasm into an organisation and is not bound by age in any manner. Item 5 of the Complainant’s supplementary submission alleges that the Deputy Head’s comment that the campaign aims to attract people from “around the world” is discriminatory of the Complainant because (presumably) she is Irish.  As an equal opportunities employer, the College aims to recruit the brightest and the best. The nationality, age, gender, sexual preference or religious belief of candidates does not come into it. A number of the Ussher appointees are Irish. In addition, a number of appointees were working in the university when they competed successfully for the particular Ussher post relevant to their field of expertise. Without prejudice to the above, even if a university within Ireland required international experience for a particular role (which as explained was not a requirement for the 2016 competition) this cannot be deemed discriminatory on the grounds of age as that particular university has no control over when an individual decides to enter the world of academia.

Conclusion

The College company operates, and adheres strictly to stringent and rigorous Equality and Recruitment policies, as shown by the information provided in this submission and as evidenced by the documentation in the accompanying booklet. A candidate’s age does not, and cannot, form any part of the selection process at shortlisting or interview stage, in the context of the policies utilised and clearly adhered to by the College.   In addition, a selection committee is not privy to details of a candidate’s age. On that basis and on the basis of the evidence offered today, the Adjudicator is respectfully requested to uphold the College’s position in this matter and reject the Complainant’s claim under the Employment Equality Acts 1998 - 2015.

Findings and Conclusions:

Discrimination on grounds of age, not promoting, conditions of employment and dismissal

Complainant

Respondent

Anonymised Parties

Lecturer

University

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00006442-001

12/08/2016

The Complainant was employed as a Lecturer   from 1^st September 2003 to 9^th March 2016. She has   claimed that she was discriminated against on grounds of her age, in not   promoting her, in conditions of employment and she was discriminatorily   dismissed. She has sought compensation.

The Claimant entered a contract of employment with the   Respondent in 2003 whereby while completing her PhD research with the   Respondent’s School of English she began to deliver tutorials and seminars.   The contract which commenced in 2003 was on a fixed term part time basis. The   Respondent completed her PhD research and submitted her thesis in September   2006 and thereafter graduated in 2007. The fixed term contracts were renewed   to facilitate the Claimant’s delivery of tutorials as required. In 2008 the   Claimant commenced a full time contract (also on a fixed term basis)   following the award of a postdoctoral research fellowship on a project within   the School of English. That fellowship ran for one year after which point the   Respondent’s terms and conditions of employment returned to their pre 2008   requirements and the Claimant continued to deliver tutorial sand seminars   within the School of English. The   Claimant also worked with the Centre for Academic Practice and Student   Learning (CAPSL) within the Respondent organisation. In 2011 the Claimant was   appointed on a six month adjunct lecturer post within the School of English.   In addition to the extensive teaching experience gained by the Claimant over   the 13 years employed by the Respondent, the Claimant was twice nominated by   students for a Teaching Award and further she has been awarded, by open   competition selection, three international travel bursaries to conduct   research in Toronto, New York and Oxford respectively. The Claimant is the   President of Irish Society for the Study of Children’s Literature, a position   she has enjoyed since 2013. The Claimant’s contractual relationship with the   Respondent was marred by a lack of permanency or career development   potential. The Claimant’s fidelity to the Respondent organisation was met   with disorganised and disinterested engagement in respect of her conditions   of employment. The renewal of her contracts of employment where haphazard and   experiencing almost no notice as to the continuance of employment was not an   unusual feature of the employment relationship.

In seeking a degree of stability the Claimant applied for   several posts with more anchored tenure within the School of English. In July   2015, the Claimant applied for the post of Assistant Professor in Irish   Studies. The Claimant was not appointed to the post but was shortlisted and   progressed to the interview stage of the application process. The Claimant was disappointed not to have   been successful in that competition but appreciated the subject matter of the   post might have been better met by other candidates. The Claimant was   heartened to note that a position was available which sat squarely within her   field of expertise. The Claimant applied for the Assistant Professor post in   Children’s Literature post. The material submitted on behalf of the Claimant   substantially mirrored the submissions made in respect of previous   competitions. The applicant was not shortlisted for interview. The applicant   was extremely disappointed and confused that she had not reached the   threshold of shortlisted applicants in circumstances where same had been met   only some months earlier in respect of a post with a more remote relationship   with the Claimant’s expertise. Where the applicant’s authority on her   expertise field had been greatly undermined by the decision not to shortlist her,   the Claimant emailed her Professor in the School of English, stating that in   light of not being shortlisted she saw no point in continuing with the   semester’s teaching. No response was received. Five days later the Claimant   was contacted by a colleague who had been offered the Claimant’s teaching   hours. The Claimant considered her post to have been terminated by the   Respondent where her contracted hours had been reassigned. It is submitted   that the constructive dismissal occurred on 09/03/2016.

The   Claimant submits that her treatment by the Respondent was discriminatory in   that she was directly discriminated against on the grounds of her age whereby   the Respondent has exhibited a preference to award full tenure post to younger   applicants, typically post-doctoral where the applicant had enjoyed a   continuous stream of tertiary education since school leaving age. In general   it is evident that the posts are awarded to persons in their second or early   third decade of life. The Claimant   submits that practice is evident by reference to the age demographics of   employees on fixed terms contracts, providing ancillary educational supports   on a rolling basis compared with the age demographics of candidates awarded   permanent or tenured positions. It is further submitted that the marks   awarded in the competition are meaningless and prescribed in manner devised   to frustrate the Claimant from attaining the shortlist threshold. In   particular the Claimant’s marks for teaching experience when compared with   the marks attained in the previous competition are instructive where on a are   pro rata basis the Claimant   attained 96% of available marks in the June competition when compared with   70% of available marks in the December competition. It is also the case that   this competency is objective without post specific requirements. That   apparent reduction in skill as observed in the Respondent marking scheme   occurred over a six month period where the Claimant continued to attain   teaching experience with the Respondent. It is submitted that it is   irrational and supports the claim that there is a prima facie case of direct discrimination as against Claimant by   the Respondent.

Furthermore   the comments made in respect of the Claimant’s relevant criteria show a   disregard for the material submitted by the Claimant. No reference is made to   the extensive academic and publication experience of the Claimant. Those   succinct comments state that “not all work rel.” whereby the assessment   appears to have ruled out the submitted experience with no rationale as to   why the work is not relevant and further in the absence of an assessment of   the relevant experience submitted. Reference is made to the Claimant’s   extensive relevant experience.

The   final submission in respect of the marks awarded is the observation that in   respect of the competence at criterion 6 the Claimant appears to have been   awarded just 50% of the available marks for her ability to work as an   effective team member and her ability to contribute to the Discipline and   School of English. Notwithstanding the fact that no comment relates to this   poor grade and its justification, the Claimant was a person who had at that   time been employed by the Respondent for 13 years. It is apparent that the   Respondent appears to claim that her skill in respect in that criterion is   sufficient to merit the award of continuous fixed term contracts but   insufficient to carry out the same work in a more stable contractual   framework. The impact of that criterion assessment on the Claimant was to   suggest that she was not valued by the Respondent organisation and further   that her post was not tenable. It is submitted that the mark is arbitrary and   irrational and further demonstrative of discrimination against the Claimant.

Secondly   the Claimant submits her treatment is indirect discrimination for the purpose   of section 22 of the Acts in circumstances where the teaching experience of   other candidates in institutions outside of Ireland is disproportionately   rewarded in the marking criteria utilised. That is to say, persons whose   experience was on par in terms of courses taught or number of years of   experience received higher marks by reference to the fact that they were   employed in non-Irish institutions. The Claimant is by reference to her age   not is a position to acquire academic   experience outside of Ireland where she has significant family ties   established in Ireland and further where her family home is in Ireland. In   that respect the policy of rewarding experience abroad disproportionately   impacts the Claimant a result of which results in indirect discriminated.

Case   Law

The Claimant relies on the decision of the Labour Court in O'Halloran v Galway City Partnership   EDA077/2007 in which the Court stated that it is only where an individual   with better qualifications related to the position at issue is passed over in   favour of a less qualified candidate, that an inference of discrimination can   arise. The Labour Court provided: “Where   a better qualified candidate is passed over in favour of a less qualified   candidate an inference of discrimination can arise (see Wallace v. South   Eastern Education and Library Board [1980] NI 38; [1980] IRLR 193). However   the qualifications or criteria which are to be expected of candidates is a   matter for the employer in every case. Provided the chosen criteria are not   indirectly discriminatory on any of the proscribed grounds, it is not for the   Court to express a view as to their appropriateness. It is only if the chosen   criteria are applied inconsistently as between candidates or an unsuccessful   candidate is clearly better qualified against the chosen criteria that an   inference of discrimination could arise.”

The burden of proof required to be displaced by the Claimant in   demonstrating the Respondent had a prima facie case to answer has been   considered in the case of Moate   Community School v Moriarty.. In that case, the complainant alleged that   he had been discriminated against on grounds of age when he had been   unsuccessful in his application for promotion to Assistant Principal. The   Labour Court acknowledged that in many cases it can prove difficult to prove   age discrimination and commented on the type of evidence which will satisfy   the burden of proof in this area: “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.” It is submitted   that the Claimant had been treated less seriously than comparators where the   Claimant’s academic record and teaching experience were not viewed as on par   with comparative applicants. No justification is apparent in the Respondent’s   decision to treat the Claimant less favourable in this instance. The Claimant   submits that the Respondent organisation harbours a culture of age   discrimination whereby persons in a similar age bracket to the Claimant are   routinely provided rolling fixed term contracts and treated as “a safe pair   of hands” for the delivery of tutorial and teaching hours not catered for by   permanent staff members if and when such requirements arise. There is no   interest taken in the career progression of persons in this age bracket which   includes the Claimant. They are, using the wording of the Labour Court, not   treated seriously. That is evident in two respects. Firstly that   notwithstanding the application of section 9 of the Fixed Terms Workers Act   2003 and the de facto entitlement   of the Claimant to a contract of an indefinite duration, the Claimant was   never, over a 13 year employment relationship offered a permanent post. It is   submitted that the variation in tutorial and seminar hours year to year does   not objectively justify the policy of the Respondent in using fixed terms   contracts. Such needs could absolutely have been considered in the terms of a   drafted contract. Secondly it is submitted that the Claimant was expected to   do her job without the resources allocated to other persons within the School   of English. This included her meeting students in corridors where no office space   was allocated.

Finally   it is submitted the culture of unequal treatment is evident against the   backdrop of the Respondent organisation’s Performance Management Scheme. That   scheme is a mandatory human resource requirement for all staff members In   accordance with the provision of the current Social Partnership Agreement,   Sustaining Progress, and the previous agreement, the Programme for Prosperity   and Fairness, the College is required to implement a ‘Performance Management   Scheme’. The Respondent’s statement on this scheme is as follows; In accordance with the provision of the   current Social Partnership Agreement, Sustaining Progress, and the previous   agreement, the Programme for Prosperity and Fairness, the College is required   to implement a ‘Performance Management Scheme’. This requirement was also   established as part of the Public Service Benchmarking exercise. In line with   the agreement, the College’s Partnership Committee has facilitated the   development of a Performance Management and Development Scheme (PMDS) for the   College. Central to the development of the scheme is the need to meet the   development needs of staff across the College, improve performance by   enhanced understanding, enhanced quality, and promoting a culture of   continuous improvement throughout the College.

And;   The key principles which underpin the   Performance Management and Development Scheme (PMDS) within a college context   are as follows; 1)Development of staff to reach their full potential, 2) Self review/self-assessment, 3)Two way   Review,4) Enhancement of Quality, 5) Promoting Equality

Strategic   Planning/Alignment (section 1.2a); Principle of Academic Freedom(section   1.2b)

(a) Developmental: The PMDS acknowledges the   responsibility of both staff and management in the joint planning of career   development. Individuals are provided with the opportunity to consider their   development needs for their future career plans through the establishment of   developmental objectives.(b) Self-Review/Self-Assessment: The PMDS is a   structured review process which recognises that it is individual staff   members that need to drive their own performance and development. In order   for the review system to work effectively, individual staff members need to   take ownership of the process and self-assessment/review will be pivotal to   achieving a sense of ownership and participation. Without   self-assessment/review there can be little benefit to the individual in terms   of identifying strengths and areas that need improvement. (c) Two-way Review:   Communication is an essential element to the success of a Performance and   Review Scheme. The PMDS opens clear channels of communications and promotes   ongoing two-way feedback between the ‘Reviewer’ and the ‘Reviewee’. The 2007   cycle of PMDS will include a formal two way review component. (d) Quality:   The process of PMDS holds closely the core principles of quality assurance in   that it is intended to promotes a process of continuous improvement at an   individual, unit and College level through a mechanism of self-assessment.   The scheme provides an on-going opportunity for each unit and staff member to   reflect upon his or her contribution to the College and provides a means to   improve upon this contribution within a developmental framework. (e)   Relationship to other College Policies and Procedures: The PMDS is a   developmental tool which is intended to improve performance. It is separate   from and should not be linked to other College policies such as promotion,   pay, reward or the disciplinary procedure. The implementation and conduct of   the Performance Management and Development Scheme process will be carried out   with full regard to the College’s Equality Policy. Notwithstanding the bare assertion that the promotion of   equality is a key principle in the above referred statement, no guidance is   provided in respect of attaining or acknowledging that key principle. It is   certainly the position of the Claimant that the performance review procedures   were not applied to her over the 13 years of her employment with the   Respondent.

Reliance   is placed on the decision of Revenue   Commissioners v O'Mahony EDA033 which is an authority for the drawing of   inferences of discrimination where there has been a significant statistical   difference in success rates for persons in different age groups who were   otherwise equally qualified.

Conclusion  

The   WRC is on notice of an extant appeal with the Office of the Information   Commissioner in respect of an access request made by the Claimant pursuant to   the Freedom of Information Act 2014. Correspondence in respect of that   application is available to the WRC in the Claimant’s papers. That claim   arises is respect of the Respondent organisation frustrating the Claimant’s   statutory right of access in respect on records held. These submissions are   made strictly without prejudice to further submissions which may be required   following the determination of that appeal and access to relevant records.

SUPPLEMENTARY   SUBMISSIONS ON BEHALF OF THE CLAIMANT

Claimant’s   complaint of indirect discrimination at the hearing of the within matter and   did not make submissions in that regard despite the attendance of persons in   a position to give evidence as to the considerations of the shortlisting   committee.

1.   The   supplementary submission by the Respondent attaches the shortlisting score   sheet in relation to the relevant competition. That score sheet was already   produced before the WRC on the day of the hearing, essentially it is not new   material and was before all parties at that hearing. The Respondent has   sought to make the following observations in relation to that document;

“The teaching experience as set out in each applicant’s   curriculum vitae and cover letter was scored against this criteria. The   Shortlisting Committee did not apply a special weighting or premium to   teaching experience attained in non-Irish institutions”.

2.   They   have asserted their position in explaining what weight was not given   with no clarity as to what weight if any was given to teaching experience   in academic institutions outside Ireland. Nor has any evidence in support of   that bare assertion been submitted by the Respondent. At the very least the   Respondent ought to, in discharging their burden in relation to the claim,   articulate what weight was given to the various candidates respective   professional experiences. It would appear that the Claimant is invited to   disprove a negative contention with no detail as to the relevant criteria   asserted to have been applied. That is an obviously unfair and indeed bizarre   request. It was at all times open to the Respondent to particularise the   qualities sought and rewarded in response to the successful shortlisted   candidates. The Respondent has elected not to furnish that detail. It is   simply stating, with no supporting evidence, that the process did not reward   experience in international institutions.

3.   It   is submitted that the Respondent confined the premium attached to experience   in international institutions, or would have confined that premium had that   premium existed or been applied which the Respondent asserts it did and was   not, to Criteria 3. There is no evidence, without the Respondent having   produced same at the hearing which it did not, that experience in   institutions other than those in Ireland would in fact be exclusively   considered under Criteria 3. It is further submitted that a logical   interpretation of the albeit broad headings attached to those criteria   suggest that professional experience in institutions outside Ireland would   not be confined to consideration within criteria 3. It is noted that criteria 1, 2, 4 and 5   respectively all permit consideration of professional experience in   institutions outside Ireland. The redaction of the shortlisted candidates   feedback/comments sections prohibits analysis in this regard.

It is   further submitted that the assertion claimed by the Respondent, that   international experience was essentially not considered is logically   inconsistent with its own comments on the type of lectureship central to the   relevant competition. The following comments are from the Respondent’s own   publication on its website and it highlights the international canvassing for   candidates for posts applied for by the Claimant. That text reads in part ;

College Begins Global Recruitment Campaign for 40 New Academic   Posts 16/10/2015

“The recruitment of these new posts across the university will   build academic capacity to develop new educational programmes. We have   identified the posts most crucial to executing our mission, and attracting talented   people from around the world who will foster global engagement in   education and research.” [emphasis   added]

“This is part of our strategy to recruit excellent academics in   areas where Trinity has strengths. There will be opportunities across our   fields of expertise, which span from Science, to Engineering and from   Medicine to the Arts and Humanities. Our objective is to attract new   talents from around the world to further the College’s position of   excellence.” [emphasis   added]

One of the criteria was that Schools appoint mentors because   these lectureships are specifically intended for academics at the   start of their careers. We're extremely grateful to the mentors – and I'm   sure the mentors, in their turn, are greatly enjoying the experience of “communing”   with younger experts in their disciplines. [Emphasis added].

So the   Respondent acknowledged at the hearing that this lectureship was different to   an ordinary post in the qualities it sought in candidates. It is submitted   that these lectureships championed young candidates, fresh-blood and those   with international experience. Those are terms connected with the competition   by the Respondent in public statements. It is manifestly the case that those   qualities allowed for the direct discrimination against the Claimant and   furthermore the obvious premium placed on international experience caused her   to be discriminated against indirectly on the grounds of her age. It is not   credible that the Claimant’s age and lack of international experience were not   considered despite the baseless claim made by the Respondent in their   supplemental submissions.

It is respectfully submitted that the WRC find the claim well   founded and award the Claimant compensation commensurate with the finding as   per section 82 of the Employment Equality Act 1998 as amended.

Prima Facie Case of Discrimination

It has been the well-established   practice of the Equality Tribunal and the Labour Court to require a   complainant to present, in the first instance, facts from which it can be   inferred that she was treated less favourably than another person is, has   been, or would be treated, on the basis of the discriminatory ground   cited. The Labour Court has stated   that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell,   DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant must establish facts   from which it may be presumed that the principle of equal treatment has not   been applied to them. This indicates that a complainant must prove, on the   balance of probabilities, the primary facts on which they rely in seeking to   raise a presumption of unlawful discrimination. It is only if those primary   facts are established to the satisfaction of the Court, and they are regarded   by the Court as being of sufficient significance to raise a presumption of   discrimination, that the onus shifts to the respondent to prove that there is   no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038, the evidential burden which must be   discharged by the complainant before a prima facie case of   discrimination can be said to have been established was further outlined by   the Labour Court. The Labour Court   stated as follows: “The   mere fact that the complainant falls within one of the discriminatory grounds   laid down under the Act is not sufficient in itself to establish a claim of   discrimination. The complainant must adduce other facts from which it may be   inferred on the balance of probabilities that an act of discrimination has   occurred.”2.4               The   College submits that it is only when the Complainant has discharged this   burden to the satisfaction of an Adjudication Officer that the burden shifts   to the College to rebut the inference of discrimination raised. The College   submits that the Complainant has failed to discharge this burden of proof   and, consequently, the claim cannot succeed.

Background to the Complainant

The   Complainant commenced delivering tutorials to students in 2003 while   completing her PhD research with the English Department of the College and continued   to do so in the capacity of Tutor and Lecturer, on a part time contract until   2010. In 2006 the Complainant completed her thesis and subsequently graduated   in 2007. From 2008 to            2009, the Complainant was employed   with the College on a full time basis in the role of Postdoctoral Researcher   on a specific project in the Department of English, following which she   continued to work with Department of English and also with The Centre for   Academic Practice and Student Learning at the College. In 2011, the Complainant was appointed to   the position of Adjunct Lecturer, which was a six month role in the School of   English at the College Dublin and in 2015 was offered and accepted a role   teaching an advanced undergraduate course for the academic year while at the   same time delivering courses at postgraduate level. The Complainant, while   engaged as set out above, was also a part-time Literature Tutor since 2002 to   the present date, at the Open Education Unit at another University. In addition, she held roles at another   named University from 2011 to 2015 in the capacity of Part-time Teaching   Fellow, a named Institute, and Part-time Academic Developer, Centre for   Teaching and Learning from 2012 to 2014.

Background to the claim

In December 2015, the position of Assistant Professor in Children’s   Literature was advertised. This post was part of a national and international   campaign to recruit 40 Assistant Professors into different specialist areas   of the college. The Complainant was one of the applicants for the post. The   Complainant’s application was submitted in January 2016. The College’s   protocols for Recruitment are specified in detail in the Human Resources   Recruitment Procedures. Clause 4 of the Procedures addresses the composition   of Selection Committees and Clause 4.3.2 deals specifically with the   composition of the Selection Committee in relation to recruiting for the role   of Assistant Professorship, for which the Complainant had applied.

In this   particular case, the Committee was comprised of the Chair and Dean of the   Faculty of Arts, Humanities and Social Sciences, Head of the School of   English, Assistant Professor of English, Assistant Librarian and the Assistant   Professor of Psychology. The External Assessor in this process was from a   named University. All members of the selection committee completed the Living   Equality and Diversity (LEAD) online training programme, specifically   developed by the Irish Universities Equality Network to provide staff with an   awareness of the key equality and diversity issues in a university   context. The internal committee is   charged with drawing up a shortlist of four candidates, following which the   shortlist is then ratified by the external member. In each case, objective grounds for the   decision to shortlist or not are recorded and made available to the   applicants upon request. The decision to shortlist is based entirely on the   materials submitted by the applicants. The Complainant’s application was   assessed and scored by the six-person Committee, along with 23 other applicants   against 5 marking criteria. Her total score of 66 and ranked 8^th   in the shortlist. The top four applicants ranked were called for interview.   The Adjudicator is asked to note in particular that applications submitted do   not contain any indication of Applicants’ dates of birth. As such, the Committee could not be aware   of the ages of any Applicants.

Complainant’s arguments

The   Complainant’s claim, as set out, outlines the following:

i) ‘I sought   feedback in relation to the decision not to shortlist my application’ (It is worthy of note at this juncture that   the Complainant did not seek feedback until after her           written resignation from the College). ‘I note that   the scores awarded to my application appear entirely arbitrary. My   experience, having gained relevant skills over the previous 7 months, was   marked lower than the previous competition in July 2015. I was not   shortlisted on account of my age.’ ii) There is a culture of awarding fixed   term contracts on a casual basis to persons in a similar age demographic to   my own. Candidates awarded permanent posts are typically in their late   twenties, post qualification with some external experience. iii) Further to   the direct discrimination on age, the Department places a disproportionate   metric value, for the purposes of shortlisting, on external experience. It is   more difficult or impossible for a person such as myself, who was a mature   student at the commencement of my academic career, to teach for a couple of   years in UK universities when I have commitments in Ireland such as my   family. iv) It is apparent that the marks awarded in the shortlisting process   are self-serving in order to appear that a transparent and accountable system   has been adhered to whereas my treatment in the shortlisting process and   throughout my career with the Respondent demonstrates that younger candidates   are preferred for permanent posts.

College’s arguments

It was with some surprise that the within claim was received by the   College, in the circumstances, for the following reasons: i)        The Complainant had been advised by   email from HR on 15^th February 2016 that she had not been   shortlisted in her application for the position of Assistant Professor in Children’s   Literature. On 9^th March 2016 however, at 18.55 pm, without       warning or notice she furnished an email   to the Professor which read:          ‘Having   been told by HR that I am not good enough to be shortlisted for the            professorship in children’s   literature, I see no point in continuing to teach in the School of English,   so won’t be back to finish this semester.’ ii) The Claimant did not   return to the College company after furnishing the email of 9^th   March , notwithstanding a message from one of her colleagues                 enquiring if she was all   right, to which she responded ‘I’m grand thanks’ on   10^th March. In addition, an email was furnished to the Complainant   the following Monday, 14^th March, from the Professor, indicating his regret at the Complainant’s   position but offering the opportunity to sit and talk about the situation. iii)   A very lengthy email was received from the Complainant on 15^th   March to the Professor, containing a   number of allegations and complaints, of which the College had not been   advised previously. This   communication, at the final paragraph, states clearly and unambiguously: ‘On   deep reflection and after 15 years in the School of English, I finally   realise that I have no future here’. iv)        The   Complainant’s departure on 9^th March 2016 was sudden and   unexpected and had a significant impact on a number of her students. Prior to   her resignation, the Complainant removed her courses from the Blackboard   system used by the College. v) In   effect, the Complainant’s resignation from her role amounted to abandonment   of              students in Week 9 of a   twelve-week teaching term, at a crucial time when her students were   commencing preparation for final assessment. Apart from this direct   prejudicial impact, her removal of courses from the system further served to   impair the urgent attempts by the College to provide alternative tuition to   the affected students. vi) A number of emails which evidence the disarray and   difficulties caused by the Complainant’s actions in resigning on 9^th   March, and by her removal of her courses from the system,. The same also                evidence the difficulties and actions which the   College was obliged to undergo while attempting to provide alternative   tuition in discharging its duty of care to its students. The Equality Policy   clearly sets out the College’s commitment to promoting equality and   non-discrimination in all aspects of its activity. In furtherance of that   commitment, the Board of the College comprises, inter alia, a   formal   Equality Committee, being a Principal Committee of Board, with staff and student   representation, charged with responsibility for the development and   monitoring of policies and practises in relation to equality. The College   employs a full time Equality Officer who is Secretary to the Equality   Committee and a Director            of   Diversity and Inclusion with the focus on ensuring equality and diversity is   embedded in all College planning processes, actives and policies. In   particular, the Equality policy contains a clear and concise outline of the   Equality Policy ‘Queries and complaints’ Procedure, which the Complainant   failed to invoke at any stage. The Complainant chose to resign her position   on 9^th March 2016, some 21 days after being advised by Human   Resources that her application had not been shortlisted. This action was   taken without any attempt by the Complainant to clarify the reasons why she   had been unsuccessful in her application or without seeking to initiate a   complaint under the College’s grievance procedure. In addition, the   Complainant now seeks to rely on feedback information she received in   relation to the competition for Assistant Professor in Irish Studies she was   shortlisted for in July 2015, in   support of the within claim of discrimination on the grounds of age. Again,   the Complainant did not seek to progress a complaint or invoke the College’s   grievance procedure at the time. In   the circumstances, it is the College’s position that the Complainant has   failed to provide primary, or indeed any facts, in relation to the age ground   claimed, on which to proceed with a viable complaint. The established Labour   Court practice             is to expect   that the Complainant will in the first instance succeed in transferring the burden   of proof to the College by presenting primary facts on the grounds claimed.   The Complainant has not done so and has therefore failed to establish a prima   facie case to be heard. The   Complainant has not demonstrated that she was unsuccessful in her application   for the role of Assistant Professor due   to her age. It is the College’s position that the Complainant was   unsuccessful in her application for the role as she was not the best   candidate, in relation to the role of Assistant Professor in Children’s   Literature (January 2016) and in                 relation   to the Assistant Professor in Irish Studies role (July 2015).It is the   College’s contention that review of both competitions will confirm that the assessments   of the Complainant were fair, reasonable and transparent; in accordance with   the College’s equality and recruitment procedures; and do not support the   Complainant’s claim of discrimination by reason of her age. In the event, however,   that the Adjudication Officer deems a prima facie case to have been   established by the Complainant, the College respectfully submits the   Complainant has failed to prove that she has been treated any less favourably   than another person is, has, or would be treated in an a comparable situation   on the grounds specified in section 6(2)(f) of the Employment Equality Acts   1998 to 2015 Consequently, the claim must fail. The College’s commitment to ensuring fair procedures   and transparency, in recruitment and selection for available roles is   directed, and governed by a number of documents in the within booklet, as   follows: i) The Equality Policy. In   particular, at Clause 4.1 under the heading ‘Recruitment and Selection’, the   policy is absolute in its guiding principles in relation to recruitment and   selection.               ii) The   College’s ‘Human Resources Recruitment Procedures’ document, at , is a comprehensive and in-depth outline of   the purpose of the recruitment procedures, outlining in detail the scope of   the policy together with procedures and processes utilised in approval of   appointments, composition of selection committees, selection committees in   the various college units, principles governing the work of Selection   committees together with extensive clarification of methods and practises as   regards interviews, external Assessors etc. It is clear then, that all   candidates who submit applications for an advertised role are subject to the   same transparent process. The College operates the same marking scheme, shortlisting   and interview criteria for all such candidates, in accordance with the   policies and procedures.   In addition,   notwithstanding the stringent procedures provided for by the College, no   candidate’s age could possibly factor into the assessment committee’s   consideration of applications because they would not be aware of a   candidate’s age or indeed personal status or gender. Again this is evident   from review of the Complainant’s application form. Direct discrimination consists of two   elements. The first is the less favourable treatment of the Complainant and   the second is the existence of grounds, in this instance age, for such   treatment. Both elements must be satisfied for a claim of                 discrimination on the   ground(s) claimed to succeed. The Complainant has adduced no grounds to imply   discrimination. As stated previously – the mere fact that the complaint falls   within one of the discriminatory grounds laid down under the Act is not   sufficient in itself to establish a claim of discrimination. It is further   respectfully submitted by the College that the Complainant has provided no   evidence via comparators that the treatment she received was less favourable   to her than to any other person or persons.   Thus, the Complainant has provided no evidence of discrimination as   required for a viable complaint under the Acts. is evidence of the application   of the College’s rigorous and visibly transparent recruitment procedures in   the competition for the Assistant professor in Irish Studies post (in July   2015), in which the Complainant was ranked 2^nd following   interview. If the 1^st ranked candidate had not accepted the offer   she would have been offered the position. The ages of candidates are never   available to a selection committee and are wholly   irrelevant in the selection process. Equality Monitoring Reports have been   published by the College on its website on an annual basis since 2006/07,   with all previous reports available online. Each report constitute a snapshot   of the diversity profile of staff and students in the College, with particular   focus on the nine grounds for discrimination in Irish equality law but also examining   other diversity aspects such as socio-economic and regional background. The   fundamental purpose of the report is to provide an evidence base for   strategic action by the College and its constituent offices to promote   equality, diversity, and inclusion. The age data in the Equality Monitoring   Reports comes directly from Core (Q Age),.                It   gives a snapshot of the age of all College staff on the day the report is   downloaded. The age representation of total staff and the five year trend is   set out on page 46 of the 2015/16 Equality   Monitoring Report. Indicative data in relation to the age of applicants to   recruitment competitions over the period 1^st January 2015 to 1^st   January 2016 is set out in page 70 and 71 of the 2015/16 report. The   information was provided via the Diversity Monitoring Form, a voluntary,   confidential module in the e-Recruitment process. 49% of applicants completed   the age question. The below report shows the age range of new Assistant   Professor appointments by faculty in the period from 1^st January   2016 to 31^st December 2016.

Section   6(2)(f) provides that as between any two persons, the discriminatory grounds   are, inter alia: that they are of   different ages

It   is the College’s position that this is not the case; The College’s procedure   is consistent in circumstances where candidates submit applications for posts   – the Committee charged with shortlisting candidates are never provided with dates of                birth of applicants. The   Adjudication Officer’s attention is drawn to Co Louth VEC v Don Johnson (EDA0712)   (supplementary documentation provided) in which, although                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         recognising the differences with the   instant case, the Court stated: “The mere fact that a younger employee and   an employee of a different gender was promoted in preference to the   Complainant could not in itself constitute a basis upon which discrimination   on the age or gender ground could be inferred. It would be necessary to show   that the Complainant was better qualified or met the criteria for promotion   to a greater degree than the younger/female successful candidates. In that   regard it is normal for the employer to determine the qualification or other   criteria for promotions. The Court could only intervene if the qualifications   or criteria selected were such as to be either directly or indirectly   discriminatory. The Court has consistently stated that it is not the   responsibility of this Court to decide who the most meritorious candidate for   a position was. The function of the Court is to determine whether the gender   status or the age of the complainant influenced the decision of the   employer.” The College selected five marking criteria to   measure candidate’s suitability based on their CV and cover letter. The   selection criteria and marks were supplied. The same criteria and scoring method was utilised for all   candidates. On examination of the criteria and selection method, no elements   of direct or indirect discrimination are evident. The criteria selected are a   fair and objective means to test a candidates’ suitability to the role and   were applied equally to all candidates. In this regard, the Complainant has   failed to establish facts from which it   may be presumed that the principle of equal treatment has not been applied to   them in this instance. In O’Halloran v Galway City Partnership (EDA077)   (supplementary documentation provided), the Labour Court stated: “Where a   better qualified candidate is passed over in favour of a less qualified   candidate an inference of discrimination can arise (see Wallace v. South   Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However   the qualifications or a criterion which is to be expected of candidates is a   matter for the employer in every case. Provided the chosen criteria are not   indirectly discriminatory on any of the proscribed grounds, it is not for the   Court to express a view as to their appropriateness. It is only if the chosen   criteria are applied inconsistently as between candidates or an unsuccessful   candidate is clearly better qualified against the chosen criteria that an   inference of discrimination could arise.” The Labour Court has determined that an inference of discrimination   can arise if a better qualified candidate is passed over in favour of a less   qualified candidate. The College contends that the best qualified applicants   were shortlisted for the roles based on the competencies they demonstrated in   their CV and cover letters and the age did not and could not form any   consideration in the decision making of the Selection Committee as is   evidenced in the shortlisting matrix.

Supplemental submission

The Complainant has asserted that   indirect discrimination is evident within the marking criteria as set out in the Shortlisting score sheet. It is   well established in case law (as provided for in the University’s original   submission) that      the burden of    proof lies with the Complainant in the   first instance to provide facts from which an                inference of discrimination on the ground of (age)   can be raised. The University notes that the Complainant has failed to   provide any facts whatsoever in relation to a          named comparator that might infer that discrimination has   occurred but has instead insisted that it is the University’s obligation to   rebut an inference of discrimination based on the scant and frivolous   allegations presented by the Complainant’s representative which have not been   backed up by any evidence whatsoever. In particular, the Complainant’s   representative has failed to demonstrate why they believe the marking   criteria has not been applied consistently for all candidates and how that is   linked to the Complainant’s age. The University therefore contends that the   Complainant has failed to satisfy the burden of proof.

The Complainant’s representative has   alleged that the University has given extra weighting to candidates who have   gained international experience but has failed to provide any details of who   exactly has been awarded these marks, the details of this person’s age, the   details of the international experience they have allegedly gained, and most   importantly, how the marks were allegedly distributed to reflect such   experience. The University reiterates that the burden of proof lies with the   Complainant to provide such facts before an inference can be made which the   University notes, the Complainant has failed to do at the adjudication   hearing, original submission, and supplementary submission. The Complainant’s representative has alleged   that, due to the Ussher competition having an international scope,   automatically signifies that a stronger weighting is given to international   experience. The University finds this allegation preposterous and   nonsensical. The University prides itself on hiring the best talent to   provide the                highest quality   education to their students and prides itself in its ability and track record   of developing academic talent from within its University. Under no   circumstances would a reputable university such as Trinity College Dublin   deem the                 standard of   experience gained within an Irish university to be any inferior to that         obtained in a non-Irish institute.   Irish institutions, including Trinity College Dublin, have produced some of   the greatest minds and brightest academics over the years which is testament   to the ability for academics within Ireland to gain the necessary   qualifications, research and teaching experience, and produce academic   publications     to the highest standard   to allow them flourish in any academic environment worldwide. The very nature   of a competition being of international scope does not infer a preference on   the University’s part for international candidates by the virtue of them   being international, but displays a positive initiative that allows the   University select the best candidates from a wider range that closest meets   the competencies selected, which as we have seen in the Shortlisting score   sheet, contain                 no   reference to international experience. The Complainant’s representative has   referred, in items 6 and 7 of their                 supplementary   submission, to the 2011 Ussher Recruitment Drive.  That particular     drive of 2011 consisted of completely   different positions five years ago and bears no              relevance whatsoever to the 2016 Ussher competition.   The 2016 recruitment drive was in respect of 40 new positions, all with new   requirements, as set out in their individual job specifications. The   advertising campaign for both 2011 and 2016                recruitment   drives was extensive, targeting multiple media sources in Ireland, Europe and   internationally however academic posts outside of the Ussher campaign are   advertised in local Irish print media and online jobs boards, which are   accessible worldwide, as is the case with all externally advertised roles.

The Complainant’s representative   makes reference to a speech made by the Head of the College in 2012 following   the 2011 recruitment drive in item 7 of the Complainant’s supplementary   submission. The University contends that the Complainant’s representative’s attempt   at scrutinizing a speech made in 2011 does not constitute facts from which   discrimination can be inferred with regards to a totally separate competition   which took place in 2016 and is more akin to an effort of trawling for   irrelevant information in an attempt to piece together an argument. The   University does not believe that this suitably meets the bar which is set to   discharge the burden                 of   proof. It is important to note that neither the Head nor the Deputy Head at   the time were part of the shortlisting or interview panels for the posts in                2011 or in 2016. As such,   they would not have seen any of the candidate applications for any of the   competition and would not, and could not, have had input into decision making   on shortlisting or interviews.  In addition, the College does              not know the nationalities of   applicants until they accept a position following interview and provide proof   of identification. In his welcoming address to the Lecturers in 2012, the Head   was pleased to have successfully created and filled 40 new academic posts in   the university. The “new blood” terminology associated with these   Lectureships arose against the background of a government imposed employment   control framework since 2009, which limited the capacity of the College, and   indeed all public service employers, to attract   talent. In his welcoming speech, the Head was expressing his pride in   managing to recruit 40 Lecturers within the context of this severely   restricting hiring environment. The terminology “new blood” is not synonymous   with youth and is interpreted as any introduction of new staff designed to   bring new ideas and enthusiasm into an organisation and is not bound by age   in any manner. Item 5 of the   Complainant’s supplementary submission alleges that the Deputy Head’s comment   that the campaign aims to attract people from “around the world” is   discriminatory of the Complainant because (presumably) she is Irish.  As   an equal opportunities employer, the College aims to recruit the brightest   and the best. The nationality, age, gender, sexual preference or religious   belief of candidates does not come into it.   A number of the Ussher appointees are Irish. In addition, a number of   appointees were working in the university when they competed successfully for   the particular Ussher post relevant to their field of expertise. Without   prejudice to the above, even if a university within Ireland required   international experience for a particular role (which as explained was not a   requirement for the 2016 competition)   this cannot be deemed discriminatory on the grounds of age as that particular   university has no control over when an individual decides to enter the world   of academia.

Conclusion

The College   company operates, and adheres strictly to stringent and rigorous Equality and   Recruitment policies, as shown by the information provided in this submission   and as evidenced by the documentation in the accompanying booklet. A   candidate’s age does not, and cannot, form any part of the selection process   at shortlisting or interview stage, in the context of the policies utilised   and clearly adhered to by the College.   In addition, a selection committee is not privy to details of a   candidate’s age. On that basis and on   the basis of the evidence offered today, the Adjudicator is respectfully   requested to uphold the College’s position in this matter and reject the   Complainant’s claim under the Employment Equality Acts 1998 - 2015.

Findings and Conclusions:

Discrimination on grounds of age, not promoting,   conditions of employment and dismissal