ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002790

Parties:

	Complainant	Respondent
Anonymised Parties	A University Lecturer	A University

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00003802-001	12/04/2016

Date of Adjudication Hearing: 1 March 2017 and 15 May, 2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015,following the referral of the complaint to me by the Director General, I commenced my investigation, inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint Following consultation with the parties, I have decided to exercise my discretion and anonymise my decision in the case.

Background:

This case concerns a claim by Ms A, the complainant that the Respondent University discriminated against her on the grounds of Civil status contrary to Sections 6(2)(c) of the Employment Equality Acts 1998 -2015, in terms of conditions of employment and other discriminatory conduct. The complainant has also submitted a complaint of Victimisation contrary to Section 74(2) of the Acts

The Complainant referred a complaint against the Respondent under the Employment Equality Acts 1998-2015 on 12 April 2016. Submissions were received by the WRC and exchanged by the parties in advance of the joint hearing on 1 March 2017. Mediation had taken place between the parties on June 9, 2016.

There was a considerable gap in time post the first hearing in the case as the Adjudicator sought further documentation from the Respondent who in turn submitted many pre- conditions to the release. I sought legal advice within the WRC and subsequently ordered the Respondent to issue the documentation to the complainant to assist me in my investigation. The Respondent complied in part. I requested the parties to reconvene and a further delay followed due to postponement requests granted to both sides. We met again on 15 May 2017. The Respondent had sought a deferral of this hearing to allow for the Labour Court Appeal in Dr Ann Cleary V UCD DEC-E2018-009, I refused.

Further documents were exchanged between the parties and the final written submissions were received in July and August . I have exercised my discretion in anonymising the decision in this case .

Summary of Complainant’s Case:

The Complainant worked as a Research Fellow and Lecturer in Nursing on a series of fixed term contracts from March 1, 2008 to 29 February 2016. She worked a 16-hour academic week and received gross pay of €1570.33.

The Complainant submitted two written submissions in support of her case. The first was submitted on April 12, 2016 and is summarised:

Three Lecturer in Nursing positions of 5-year tenure were advertised at the University on August 6, 2015.

2 x Full time positions

1x part time position

The Complainant had over 8 years clinical experience, four years academic teaching at under graduate and post graduate level and further experience in technology enhanced learning and innovative teaching methods. She submitted that she had married in May 2015 and was hopeful of securing a regular full-time position. She arranged a meeting with her Head of School, Ms B on August 12,2015 to seek “clarity and guidance “about the roles advertised to prepare her application.

The Complainant outlined that the meeting focused on personal matters which caused her concern. She submitted that Ms B had asked her:

1 How long she was married?

2 What age she was?

3 How she found married life?

There was a further discussion on the resultant challenge that 7 maternity leaves were having on the Department. The complainant left the meeting, feeling that the Head of Schools priority was the workforce challenges and the likelihood that the complainant’s newly married status would compound that challenge. The Complainant made a contemporaneous note of the discussion, and while her questions on the roles attributed to the posts were addressed, there was little guidance around the advertised roles or her future career.

The Complainant submitted that she discussed her concerns with many close colleagues, career guidance, and her own GP. The Complainant had established a strong academic portfolio and was determined to apply for the position to advance on eight years of fixed term contracts and to stabilise her income.

The Complainant was shortlisted and attended for interview at 11.55 hrs on November 27, 2015.She was asked by the Chair at Interview, whether she would consider a 12-month part time position? She expressed an interest in the full-time positions. The Head of School appeared surprised at this. The Complainant contended that the interview was unfair to her.

Shortly after 6 pm that evening, she received a phone call from Ms B informing her that she was unsuccessful for all three posts and she stated that she was not sure whether the complainant had a future academic career.

This phone call was followed by a phone call from another colleague who confirmed that she had been offered the 5-year position, but was unlikely to accept it as she had relocated to Galway. She told the complainant that she would consider the offer and revert. She subsequently learned that the part time position was not accepted either.

The Complainant secured her University Interview Report and her Individual interview record form. She had been deemed appointable by the Selection Committee and marked 4th in order of merit.

The Complainant submitted that she should have scored higher in Teaching (18/25), given her preferential experience at Masters level. She also contended that she should have been scored higher in Research (16/25). This scored was adjusted downwards by the HR Representative on the panel. This was initialled but not dated.

The Complainant submitted that the illegible scribble on her Feedback section indicated “a failure to properly assess or consider her record in research”.

The Complainant was dissatisfied with her marking of 14/20 in Administrative skills, which she submitted was unjustifiable. The Complainant contended that the match with job description score of 14 was neither a valid or rational score.

The Complainant disputed that the Selection Committee had undertaken proper training prior to interview.

The Complainant appealed the outcome of the interview on January 21; 2016.The Respondent informed her that there was no internal appeal mechanism in being. The Respondent then issued a response to the appeal letter where it stated that the complainant was treated in a respectful manner throughout the recruitment process.

The Complainant submitted that she was offered the part time position on January 7, 2017 sometime after the successful candidate had declined the offer.

The Complainant contended that this was an offer of appeasement given her decision to question the interview process.

The Complainant submitted that she had been subjected to a discriminatory selection process and it had a significant detrimental effect on her self-esteem. Her peace of mind, career, security of employment and her potential to develop a sustainable income as a newly married woman. She contended that her recent marriage in May 2015 placed a determining negative bias on her standing and value in the University and contended that she had been victimised when she pursued the appeal.

The Complainants representative made a further written submission in advance of the hearing and submitted that the Complainant had been prejudiced and subsequently discriminated against on civil status (married) regarding the competition for the 5-year Lecturer in Nursing posts. He also submitted that the complainant had been discriminated against, harassed and victimised in relation to

1. A Discriminatory and biased categorisation of her in terms of her protected marital status during the competition.

2. An irrational, biased and unreliable assessment of her competence at interview.

3. The Appeal submitted was not given any reasonable consideration.

4. The University did not meet with her on foot of her grievance on appeal.

5. Correspondence issued to the complainant which was intimidatory and hostile. There were delays in responding to her and in offering the part time position.

6. The University sought a repayment from the complainant.

Pre- Interview:

The Complainants representative submitted that the line of questioning adopted by Ms B at this stage would “be a matter of concern in any employment situation”. The complainant was denied her right to privacy and protections of her marital status under the Employment Equality Acts 1998-2015.

He contended that Ms B had advance notice of the meeting of August 12 and likely gave some consideration to the prospect of the complainant being appointed .It may have been the case that this line of discussion instigated by the Head of School awes designed as a veiled communication to the complainant what were the essential criteria in the award of these posts .He contended that it was clear that maternity leave absences and the complainants recent marriage were relevant considerations for Ms B in the circumstances of her informing the complainant of the significant difficulties maternity leave absences were creating at the school .He cited the application of :

Gough V St Marys Credit Union EE 15/2000

Mc Donald V Colonel Healthcare DEC –E2000-12

Rodmell V TCD Dec –E 2001-016

During the Interview:

The Question of whether the complainant would consider a 12-month part time position, followed by Ms Bs “full time post only?” were inappropriate and irrelevant in an interview setting. The Representative contended that the question was motivated by a desire to reduce the Schools exposure to possible maternity leave rather than legitimately assess candidate capabilities. He argued that it influenced the other interview panel members.

Following the Interview:

The Interviews concluded at 16.10 hrs on November 27, 2015.The Complainant later received a call from Ms B stating that she was unsuccessful for all three posts, yet omitted to mention that she stood a chance of being appointed.

Interview Scores:

The Complainant sought her interview scores on December 2, 2015. She sought further clarity on January 7, 2016.

She was informed that further information, if required should be obtained through Freedom of Information Act, yet, the Respondent furnished the information outside the Act, thus deviating from its own policy.

Delay in Feedback

The Complainants Representative submitted that 6 candidates had interviewed for 3 positions . The delay in the Respondent providing feedback on the interview to January 28 or February 16 for personal data amounted to victimisation.

Ms C V Board of Management of School A DEC E2016-043 applied

The Appeal;

The Complainant submitted an appeal of her interview outcome and despite no appeal mechanism being in existence, the Respondent concluded its findings without recourse to the complainant. The Complainants representative concluded that this action amounted to victimisation.

Job Offer:

The Complainant submitted that she was offered the part time post on January 7, 2016, some hours after expressing her commitment to pursuing her request for information under Freedom of Information. This was followed by a contract on January 14, 2016, where a response was required by January 22, 2016.

The UCC Regulations on Appointments other than Professional posts stated that two-week consideration period was allowed. The offers to the other candidates were left open for more than three weeks.

Interview Report:

The Complainant received this on January 26, 2016. The Interview questions were omitted.

The Complainant relied on

Ronaldo Monck V NUI Maynooth DEC E2005 -030

Carey V Mc Carthy Daly Stapleton EE16/1981

The Complainants Representative contended that the absence of Interview notes was a deviation from Labour Court case of EDA 0715 and The Data Protection Act.

The Complainants Representative drew the attention of the hearing to the complainant’s contention that she should have scored higher in all aspects of her interview base on her experience. He drew attention to the mark secured under Research and Education as 16/25. This score was marked downwards and initialled by the HR Representative to the Interview Board and the complainant was unclear when this was altered. He submitted that both the original and altered score did not reflect the complainants national and international achievements and the score was discriminatory and biased against her.

With reference to Mc Ginn V Daughters of Charity EDA 039, the Complainants Representative, submitted that the complainant was more suitable for the position than the second successful candidate. He submitted a table of differentials in the candidates Ms A and her stated comparator, Ms C.

Ph. D:

Ms A 2013 Ms C 2015

Nursing Qualification:

Ms A 2007 Ms C 2010

Teaching

Ms A Under Grad and Post Grad Ms C Undergraduate

Academic Body /Professional Associations

Ms A Past and present member of several professional bodies and Interest Groups

Ms C none

Administration and Personal Skills

Ms A Peer Review for journals, Principle Investigation in Research, 8.5 years continuous experience.

Ms C 2.5 year’s intermittent experience.

Summary of Complainants Evidence:

The Complainant had worked at the University since 2008 and accepted a two-year contract involving an Academic review in December 2014.She had completed an application for lecturer post in 2013 and the feedback suggested that more teaching experience and funding were needed.

She was very keen to compete for the posts in August 2015 and arranged a preparatory meeting with Ms B on August 12,2015. She was taken aback to be asked what age she was and how married life was going by Ms B at the meeting? Ms B told her that she wished that she had opportunities to give all the Lecturers jobs as she had difficulties getting maternity leaves covered. The Complainant stated that she was concerned after this discussion and spoke to colleagues who encouraged her to compete, saying that she had a great chance.

She found the interview difficult. She was taken aback to be asked which position she was interested in? She had expressed an interest in the full-time posts only on the application form and was confused when Ms B asked, only full time?

She received a 50 second phone call from Ms B after 6 pm on the day of the interviews. Ms B stated that “Unfortunately, it was bad news “and explained that she had been unsuccessful at interview and she didn’t know whether the complainants career was in academia or not. The Complainant stated that she was shocked at this conversation.

She realised that her Fellowship position was still intact, but her colleagues were incredulous at her lack of success at interview. She sought feedback from HR.

The Complainant state that No 2 on the successful list declined the full-time position offered, thus allowing No 3 (the cited comparator, Ms C) the opportunity to take this place as she had refused the part time position.

She described the period of 21 December 2015 -7 January 2016 as a distressing time .She decided to seek further information from HR and thought it more than a coincidence when she was offered the part time position later that day .The Complainant submitted that she decided to appeal the interview result but it became apparent that Human Resources had no procedures in place to cover such an appeal .The Respondent wrote back to her supporting the University position adopted at interview and her side of the story was not heard .

She recalled that Ms B suggested that they meet to discuss the offer of the part time position. On 28 January,2016 she met with Ms B and sought feedback on the interview. However, Ms B told her that given her appeal was lodged, it wasn’t appropriate for her to give feedback.

The Complainant outlined that the alteration in her markings from 18 to 16 in her Interview Report could have made a difference given that there were two marks between her and her stated comparator in the overall scoring and Ms C was single at the time of the interviews.

The Complainant decided not to accept the offer of part time position and terminated her employment in favour of another Third Level College in February 2016. However, the Respondent pursued her for an alleged overpayment of annual leave and payment of salary, which she regarded as Victimisation.

During Cross Examination:

The Complainant confirmed that she had asked how Ms Bs' Mother was during the August 12 meeting. She confirmed that the meeting was both friendly and pleasant and information was imparted by Ms B on the realm of the posts advertised. She confirmed that she had mentioned that she was “31 now and pushing on”.

The Respondent representative asked the complainant whether she had posed the question to Ms B on why it was so difficult to get posts in Lecturing? The Complainant confirmed that the Public-Sector embargo was discussed as an impediment. She confirmed that they had discussed A lecturer post in Children’s Nursing near the conclusion of the meeting and the Complainant agreed that she should have undertaken that path to get a better job.

The Complainant confirmed that she had attended her GP 4 days before the interview as she was stressed and her self-confidence was affected.

She confirmed that she was very upset post her omission at interview and “the upset was my silence”

The Complainant disputed that her perceptions pre-empted her claim of objective bias and discrimination and stated that she “knew what was said “.

She had responded positively to the pro-offered feedback on 30 November, but failed to receive meaningful feedback.

The Complainant submitted that the Civil Status of the four appointable candidates were:

No 1 Married

No 2 Single

No 3 Single, the Comparator.

No 4. Married, the Complainant.

The Complainant confirmed that there would be less risk of maternity leave in candidates who were single. The posts constituted the first full time posts opportunity since 2013. She was encouraged by her colleagues to challenge the Interview result.

The Complainant confirmed that she met with Ms B but was not afforded an engagement on the interview which she contended was adverse treatment. She also confirmed that she had been hounded subsequently by the same HR staff who had managed her interview in relation to an alleged overpayment.

The Complainant confirmed that she was unhappy with the post interview feedback and in relation to the release of information sought by her on the interview process.

During the second day of hearing, the complainant confirmed that she had not sought documents/information on an EE2 form.

The Complainants representative submitted a written and oral response on receiving the supplementary documentation. He emphasised the undue delay had an injurious effect on his client. The Virtual complete redacting of the application forms coupled with a complete disclosure of the complainants unaltered application form was counterproductive, of no value and further evidence of discrimination.

He submitted that the Ms A was the sole candidate with a downward adjustment in markings by two marks. Ms C, the comparator was the only candidate with an upward adjustment by one mark, which resulted in her securing third place and ultimately accessed the 5-year post, which should have been reserved for the complainant. Candidate no 2 had already handed in her notice at the time of the interview. The Complainants representative also raised that the complainant lost out on her scholarship funding. He also contended that the delay in being offered the part time position prior to January 7, 2016 was evidence of significantly different treatment towards the complainant.

He drew attention to the variation in duration of the informal telephone calls from Ms B to the Candidates post interview. The Complainant received a 50 second call as confirmed in Ms Bs records. While the remaining candidates received variable length calls from 3 to 6 minutes. This was further evidence of less favourable treatment.

Summary of Respondent’s Case:

The University is one of Irelands oldest Institutes of higher learning and is home to 20,000 students and 2,800 professionals. The University is an equal opportunities employer and has attained a special charter in recognition of the recruitment, retention and promotion of women in the workplace.

The University denied all claims of Discrimination and Victimisation and made a Preliminary Argument on the claim of Harassment. The Respondent confirmed that the complainant had worked at the University from March 2008 in a variety of roles:

March 2008-September 2011 Research Assistant (part time)

October 2011 – September 2012 Post Graduate Studentship

October 2012 –September 2012 Lecturer part time

October 2012 –January 2015 Lecturer part time

January 2015-February 2016 Research Fellow

The Respondent submitted that the complainant was no longer in the employment of the Respondent on the date the complaint was submitted to the WRC.

Preliminary Issue:

The Respondent objected to the inclusion of the claims of Harassment and Age on the complainant’s submissions of 6 February 2017 on the basis they were not incorporated on the initial complaint form. They submitted that it was not referenced in the earlier April 2016 submission. The Respondent submitted that the Adjudicator/Equality Officer had jurisdiction to deal solely with the matters complained on April 12, 2016 and opposed any attempts to amend or expand the claim.

Substantive Case:

The respondent accepted that the Complainant is covered by the civil status ground, but rejected that the treatment complained of occurred. The University contended that the Complainant had not satisfied the “treated less favourably test “as at least one of the successful candidates ranked higher than the complainant was also married.

In 2015 the University advertised three Lectureship posts in Nursing via a single competition, with a closing date of September 8, 2015. There were 22 applicants, 6 were shortlisted on 25 September 2015 and 2 were placed on a reserve list.

The Complainant was informed of being successfully shortlisted on 5 October 2015.She accepted the invitation for interview and requested the list of Interviewers. The Selection Committee was comprised of

1 Male Chairperson (Professor)

2 Female Extern ( Professor)

3 ,4 and 5 Female Head of School and Two Lecturers

6 A Human Resource Dept. Representative, Mr B attended at the assembly of the Board and again at deliberations in line with University Regulations.

The Complainant was ranked 4th of 5 Appointable candidates. The Head of School contacted the complainant and the other internal candidates informally to advice on the outcome of the interviews in line with the same regulations.

On 30 November, the Head of School, on her own initiative emailed the complainant offering to meet to provide feedback on the interview. This was arranged for January 28, 2016.

The Complainant sought feedback on her interview from the HR Dept. on 2 December. The positions were formally offered by the Human Resource Dept. On December 3, 2015 the Complainant received a letter stating that she had been successful at interview but was not to be appointed save another candidate being “unable to take up the appointment “.

On Monday December 21, Candidate No 2 communicated to HR that she was not able to take up the whole-time post and this was then offered to No 3 on the following day, the last full working day before the Christmas break. This offer was accepted immediately.

After the Christmas break, the Complainant submitted a request for documentation on Score sheets and notes on her interview and was advised that she would have to make a request under the Freedom of Information Act.

The Complainant was offered the part time position on January 7, 2016 and a contract was generated and issued on January 14,2016.

The Head of School offered to meet the complainant before she signed the contract. On 17 January, the complainant responded that she had “overall concerns from the interview competition” and had requested scoresheets. She declined to meet and confirmed that a meeting was already arranged for January 28.

On 20 January,2016 the Head of School emailed the complainant

“I note your email. My communication was to meet separate to 28 the January since there is a timeline to indicate acceptance or not of the post by the end of this week. The purpose here was to address any questions concerning the position to inform your decision. This is a different focus to the meeting on 28th January whereby I offered to share some observations from the interview with the intent on being supportive “

Further email correspondence was exchanged between the parties but the complainant refused to meet the Head Of School .The Complainant submitted an appeal of the Interview on 21 January 2016 and this was managed by the Human Resource Dept. who outlined that the University did not have an appeal mechanism and stated that the Head Of School had not considered the complainants gender, marital status, family status, or age as a relevant consideration in respect of the appointment process or during her career .

The Complainant declined the position on Friday, January 29, 2016.

The Respondent outlined the University response to the claims:

August 11, 2015 Meeting

The Respondent submitted that this meeting was to discuss upcoming posts. The Complainant requested a reference from the Head of School, which was dated 16 November 2015 and was highly supportive of the complainant. The Respondent submitted that the then difficulty of securing academic posts was discussed and confirmed that the complainant was asked how married life was. in the context of “small talk”

The Interview

The Respondent set out that the complainant’s family status was not mentioned at interview and disputed that the complainant was asked whether she would prefer a full-time post?

Phone Call of 27 November

The Head of School was nominated by the Selection Committee to make the informal phone call to the internal candidates pending ratification of the positions by the University.

Scoring at Interview

This process is underpinned by University Regulation. At Interview, the same questions were asked of all candidates. At interview every candidate was asked if, in the event of them being successful, whether they would prefer full or part time? The answer did not have a bearing on the ranking order.

The Respondent contended that the Selection Committee did not consider her civil status as a newly married woman. They disputed the correlation drawn by the Complainant that she was treated less favourably as she may need to avail of maternity leave. The Respondent stated that being married and availing of maternity leave were not co-dependent.

The Respondent addressed the matter of the January appeal lodged by the Complainant and submitted that a response was deemed in order, notwithstanding there was no provision for an appeal within the competition or Grievance Procedure. The Respondent took issue with the complainants attempts to conclude a comparative analysis the criteria as applied to both her and the named Comparator, Ms C.

The Respondent relied on case law:

O Higgins V the Labour Court and UCD, where the Court stated:

The Role of the Court is not to decide on the merits of the applicant, it cannot substitute its views on the relative merit of the candidates for those of the designated decision makers. Rather, its role is to ensure that the selection process was not unfair to the applicant or was not manifestly irrational in the result

Joan Buckley V UCC [2016] IEHC 270

CIT and a Worker LCR 21315

The Respondent concluded that the Interview Board in the present case had satisfied the requirements set down in the CIT case. The Board was comprised of senior experienced and trained internal persons as well as a senior external expert. The same headline questions were asked of all candidates and each candidate was allocated the same amount of time at interview.

Victimisation:

The Respondent submitted that the Complainant made her first reference to discrimination in her letter dated January 21, 2016. The Respondent contended that the complaint was not comprehended by the Act as it was not accompanied by evidence or linkage between the grounds in the legislation and the alleged discrimination.

The Complainant was deemed appointable in the competition and was offered one of the three positions in January 2016. The Complainant refused this offer and the position was taken up by the 5th ranking candidate.

The Respondent denied any adverse treatment against the complainant during her follow up to her interview or via the submitted appeal.

The Respondent confirmed that the Complainant had sought interview notes which were separate to a Personnel file; this necessitated a Freedom of Information process, which was adhered to by the University. The Respondent denied that the time delays constituted victimisation of the complainant.

The Respondent submitted that the Complainant had not availed of the offers to engage post the interview and this did not constitute Victimisation.

The Complainant was offered the part time position on January 7, 2016, on the reopening of the University after Christmas. There was no undue delay.

The Respondent objected to the inclusion of the salary recoupment and annual leave issues by the complainant as they were in no way related to the claim of discrimination. It was a straightforward overpayment and the University sought to recoup the amount. The matter was resolved between the complainant and salaries and did not constitute Victimisation.

The Respondent outlined that the complainant had been successful at interview, had been deemed appointable and had refused the offer of a position. The Respondent submitted that the complainant had not established a prime facie case of discrimination and cited

Apparel Supply Solutions Ltd V Sandra Mullen EDA 146

Kathleen Moore Walsh V Waterford Institute of Technology

O Halloran V Galway City Partnership DEC –E2013-081

The Respondent contended that both complaints should be dismissed.

Evidence of Chair of Interview Board: Mr A.

The Chair of the Panel confirmed that he had received training in the role of Chair, Legislation and Equality training in 2015.He outlined his role as settling the candidates in, Introductions to the Panel and ensuring that the same questions were asked of the candidates. He also had a role to ensure the process was free of discrimination.

He recalled November , 2015 interview . He submitted that he was unaware of the civil status of the candidates and Maternity leave had not been discussed. He stated that it was a competitive interview comprised of internal and external candidates. The ranking was arrived at through a participation of the selection committee to reach a consensus. He was satisfied that 4 “really good candidates “were deemed appointable and the process had integrity.

During cross examination, Mr A confirmed that the external Interviewer took the topic of research and Ms B spoke last. He confirmed that the set of questions used were retained and returned to the HR Dept. . He explained that “Person specification” meant a” distinct match for what we wanted “

He confirmed that topics were generic and led to sub topics for the six candidates interviewed. he confirmed that there had been no discussion on candidates until the very end of the interviews in line with the university Regulations. He did not recall the mathematics behind the complainant’s reduction from 18 to 16 on her score sheet. It had been a long day and it was after 5pm.

Evidence of Ms B.

Ms B has worked at the University since 1995.She had assumed the Chair of the Department in 2012.She knew the complainant and referred to her as an early career academic with positive potential. She recalled their meeting in August 2015.

She accepted that they had exchanged polite pleasantries. She stated that she hadn’t seen the complainant since she was married and did ask her how married life was? This reflected their social relationship where the complainant had attended a Birthday at her home and the complainant had enquired regarding her Mother.

Ms B outlined that the University was chosen to provide a strategic education initiate on line, the posts had emanated from this initiative. She recalled that she had re-assured the complainant that she did not need to have on line experience. She recalled that the complainant mentioned that she had 8 years’ service at the University and told her that she needed to take this into account. She responded by stating that it was an open competition. Ms B stated that the complainant presented with a sense of entitlement which caused her in turn to feel “guarded”. She recalled a previous competition in 2013, where the complainant had asked her to review a Power Point presentation and she told her that she was not able to look at it and this was accepted.

Ms B was aware of the complainant’s aspirations in the field of Lecturing. She recalled discussing her workforce difficulties hampered by the Public Service embargo and told the complainant that she had 7 Individuals on maternity leave. Ms B stated that she couldn’t recommend a candidate but was wholly positive towards the complainant.

Ms B was one of 5 members on the Interview panel, where the same questions were asked of each of the 6 candidates. She did not agree that the complainant was pressed to accept a part time position. She denied that she had influenced any of the committee either before, during or after the interview. She knew 4 of the candidates and she spoke last at interview.

She recalled making a phone call to the complainant at 17.29hrs on 27 November 2015.She imparted the outcome of the interview and told the complainant that she had been deemed appointable but not successful to which she received a pause. She told the complainant that HR would be following it up from there and the complainant thanked her for the call. The conversation lasted 50 seconds.

Ms B outlined that she had a practice of being supportive to the complainant and expected her to do well at interview. She stated that she thought the “complainant would have done better”.

Ms B offered to provide feedback and the complainant responded welcoming the conversation ten days later. She did not mention her upset.

By December 21, it became clear that the part time position had become available and this was offered to the complainant in early January. Ms B wrote to the complainant, pleased to progress the offer. She received an email from the complainant on January 17, 2016 where she was awaiting information on scoresheets from Human Resources and pointing to January 28 pre- booked meeting.

Ms B stated that her knowledge of the civil status of the candidates at interview arose from her personal knowledge of 4 of the candidates

No 1 Had Family and partner

No 2 Boyfriend

No 3 not married, boyfriend

No 4 married

No 5 no idea

No 6 no idea

She denied that the complainants married status had any bearing on the outcome of the interview and submitted that 85%-90% of the profession were female and maternity leave was managed in accordance with workforce plans, but had been hampered by the embargo on back filling posts.

During cross examination, Ms B confirmed that the conversation in relation to the 2013 presentation had caused her to be guarded as she was conscious of her role in the selection process.

Ms B denied that she used the words “bad news” during the post interview phone call. She offered feedback based on her own observations. This feedback is offered to internal candidates.

Ms B confirmed that she had continued to be the complainants Supervisor. She emailed the complainant on 30 November.

Ms B confirmed that issue surrounding the outcome of the interview was formalised in January 2016 after the complainant was offered the part time position. Ms B didn’t think it appropriate to over step this process. The HR Dept. managed it from then on.

Evidence of Mr B, Employee Relations Manager

Mr B outlined that the Interview Process was governed by comprehensive University Recruitment regulations. The University had secured the Athena Swan award for recruitment.

Mr B stated that the HR representative attends in advance of interviews, to advise the Committee on selection criteria, Equality legislation, equal time allocation. The Scoring method and weighting are agreed in advance. The HR representative is not present at interview but joins the Selection Committee post interview to record the outcome of the competition on an Interview report.

Mr B confirmed that he attended the conclusion of the interviews and for the scoring of the appointable candidates.

He confirmed that the scores were based on

1 Education and Qualification

2 Teaching and Examining

3 Research Scholarly Standing

4 Administration / Personal Skills

5 Seminar Presentation

6 match job description to Person

The Scores were recorded as

Candidate No 1: 84

Candidate No 2: 78

Candidate No 3: 74

Candidate No 4: 72

Candidate No 5: 69

All five were deemed appointable.

The positions were offered to the successful candidates and the part time position was deemed available on 22 December 2017. This was the last working day before the Christmas break and the post was offered to the complainant 4 working days following resumed opening on 4 the January ,2016.

Mr B stated that the Grievance Procedure precludes an appeal of an interview within the University. Yet considering the complainants upset detailed in the letter of appeal, the University felt that a detailed response was needed.

Mr B stated that the complainant’s application under Freedom of Information was treated in the same way as any other application and denied that the complainant’s civil status was considered.

Mr B explained that HR manages the issuing of contracts.

On the second day of hearing, May 15, 2018, Mr B submitted that he had considered his initials on the downward markings for Ms A. He submitted that there were often discrepancies at “mark up “stage .He stated that he really couldn’t remember the circumstances of the change but felt that it must have preceded the imposition of the signatures on completion of scoring. He reaffirmed that no records of questions asked at interview remained.

During cross examination, Mr B confirmed that a Clerical omission arose when the complainant did not receive a record of the questions asked at interview, attached to the Interview record. The Regulations specify that notes are shredded post interview. He submitted that the questions should be available.

Mr B could not recall the circumstances surrounding the amendment of the complainants score from 18 to 16.

The Trade Unions had accepted that the Grievance Procedure precluded an appeal mechanism.

The Respondent made further submissions in rebutting the claim of discrimination on civil status grounds. An analogy was drawn between the instant case and that of another University case of Dr Ann Cleary V UCC, (currently under appeal) and time sought to let that appeal run considering the parallel arguments on preservation of privacy in data protection.

The Respondent confirmed that out of 49 lecturers/professors in the school, 34 were married, 10 were single ,1 separated /divorced and 4 unknown status. In addition, they submitted a heavily redacted set of application forms in seeking to preserve the “privacy on personal data”. The Respondent submitted that there was no Trade Union agreement on excluding an appeal mechanism post interview. The Respondent confirmed that all three appointed lecturers were still in post with the third candidate having increased to a full time 4-year position.

Findings and Conclusions:

At the outset of the hearing, I addressed the parties that I had previously worked as an Industrial Relations Officer who represented Nurses. I stated that I had not to the best of my knowledge represented the complainant. I asked the parties whether they wished to raise an objection to my hearing the case? Both parties confirmed that they were satisfied to proceed with the case without objection. I proceeded on that basis.

After the hearing, I permitted the respondent some time to make a further submission on the Interview. I wrote to the Respondent on 10 April 2017 seeking further information to conclude my investigation. I outlined that I was bound to share all responses with the Complainant. I sought documents to assist me in the completion of my investigation.

1 Interview Record form for all candidates

2 Applications Forms

3 Grade Distribution by Civil Status in Lecturer positions at the School of Nursing and Midwifery.

4 Trade Union Agreement on the exclusion of the facility of appeal from recruitment competitions.

5 Confirmation of Date of Appointment for three candidates

6 Records of questions asked at interview.

The Respondent responded outlining many Data Protection concerns regarding the information I sought. On 28 April 2017, the Respondent sought an undertaking from the WRC that Information furnished would only be utilised for the application before the WRC and sought that the WRC give an undertaking that the information would not be disseminated by the Complainant or her representative and would be returned to the WRC.

I spent an extended period seeking legal advice within the WRC on this point. I received further submissions from the Respondent that that there was no automatic right for a complainant alleging discrimination in recruitment to obtain personal data/information about other candidates. I subsequently wrote to the parties seeking that the Respondent would issue the documents as requested and I reconvened the hearing to seek further submissions. I regret the delay in progressing this aspect of the case. I addressed the parties during the resumed hearing on the provisions of Sec 97(2) of the Acts, where both parties were obliged to consider penalties applicable.

On May 4,2018, the Respondent submitted a response to supplementary documentation sought.

1 Interview Record Forms – Forwarded bar 1 candidate (personal information redacted)

2 Application Forms - Forwarded (personal information redacted)

3 Grade Distribution Forwarded

4 Agreement with Trade Unions None and not directly relevant

5 Dates of Appointment Forwarded

6 Record of Questions asked Record No Longer available

Both parties addressed the additional information by oral and verbal submissions.

I have carefully considered the claim for discrimination on civil status grounds advanced by the complainant. I have also considered the respondent response. Both parties submitted voluminous written statements. I have read and considered all.

Civil status as a ground of discrimination emerged from the former marital status and is outlined in Section 2(1) of the Acts as amended by S 102 of Civil Partnership and Certain Rights and obligations of Co habitation Act, 2010.

Being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.

I am satisfied that the Complainant is covered by the Civil Status grounds. It was not disputed that she married in May 2015.

As a pre-amble to my findings, I chose to reflect on the Advocate General commentary in Meister.

Discrimination has the reputation of being particularly hard

to substantiate. This is even truer in respect of

discrimination in employment. Aware of this problem, the

European Union legislature has adopted measures to assist

applicants claiming to be victims of discrimination on the

grounds of, in particular, sex, age or origin. The European

Union legislature has thus provided for a shift in the

burden of proof, without, however, going so far as to

uphold its complete reversal since the long‐standing

freedom of employers to recruit the people of their choice

must not be completely disregarded.

Opinion of Advocate General Paolo Mengozzi 12/1/2012

Meister v Speech Design Carrier Systems GmbH Case C‐415/10

Section 8 of the Employment Equality Acts prohibits discrimination on any of the protected grounds. In 2012 version of Employment Equality, Bolger, Bruton and Kimber referred to Civil Status being a matter of Irish law only where less favourable treatment on the grounds referred to as “persons formalised and in legally binding relationship “is prohibited.

Section 8(5) of the Act has relevance in this regard:

5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

( a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

( b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or (c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

I explained to the parties that it is not my role to decide on the most meritorious candidate for the position. That is the prerogative of the employer. However, it is a qualified prerogative and is contingent on compliance with employment equality legislation. It is virtually impossible to find direct evidence of discrimination; therefore, it is necessary to look behind a decision to recruit/hire a candidate to establish whether there are inferences properly drawn from the primary facts, which may or may not lead to satisfying the burden of proof set down in Section 85A of the Act? I looked for clear evidence of unfairness and any manifestation of irrationality. The Complainant did not a submit an EE2 request for information and this became a distinguishing feature than the case of Dr Ann Cleary and UCD. This may have allowed me to draw earlier inferences in accordance with Section 76 of the Act.

Burden of proof.

85A

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

In Dr Teresa Mitchell V Southern Health Board (2001) ELR 201 established a much-quoted test in this regard where the complainant is required to prove the primary facts on which she relies. The facts must then be evaluated to test for sufficient significance to comply with Section 85A.

I listened very carefully to both parties in this case and there are many background facts relevant from the outset. The Complainant by her own admission acknowledged that she was working as a part time lecturer/nurse and was very keen to formalise her employment as a full time Lecturer in Nursing. The University where she worked had not had an opportunity for advancement since 2013 and she saw the competition for the three posts launched in August 2015 as a precious and unique opportunity to attain this goal. She had clearly invested heavily in her career as a Research Fellow/Lecturer and understandably wished to consolidate the insecure employment into something more stable.

She told the hearing that there was an informal understanding in the school that being married and having a potential pregnancy would be viewed negatively by the school. I appreciate that the complainant held this as a strong belief, but there were no witnesses to corroborate this statement and I find it to be an assertion. I make this statement on foot of the statistical information received from the respondent in May 2018 where married civil status was by far the pre-dominant civil status at the school at 34/49. This was not disputed by the complainant. Neither was issue taken in the veracity of the 7 staff on maternity leave during August 2015.

From the outset, I found the Respondent submission short on the items I sought to progress my investigation. Jurisprudence in this area has guided me to expect an extensive sharing of the material information which led to the decision to appoint the successful applicants to the positions. Gleeson V Rotunda [2000] ELR 206 and Board of Management v A Worker EDA 1726 applied. There was a significant gap on interview notes, application forms, exclusion of grievance procedure on appeal and most particularly a rationale for the alteration made in the complainant’s markings in research from 18 to 16/25. The Respondent then raised further reservations around the limitations of the need for privacy under Data Protection Legislation for the remaining candidates.

I sought to bridge this gap with the Respondent by formally requesting the documents and seeking replying submissions on two key ECJ cases of Kelly V NUI (C-104/10) where a complainant who had applied for a vocational training was refused and denied information citing data protection. He was offered redacted information. The ECJ found that the burden of proof rules was not breached and data protection principles must be considered. In Meister V Speech Design Carrier Systems Gmbh, the ECJ held that EU laws did not grant an automatic right on whether a post had been recruited to or grant an entitlement in relation to information on the successful candidate.

The Respondent sought the protection of the WRC for the release of information. Legal advice was secured and I ordered the Respondent to release the information necessary for me to complete my investigation and decision in accordance with Employment Legislation. The Complainant was understandably very dissatisfied by the delay. I reconvened the hearing to hear from both parties.

The Complainant had submitted that she had been discriminated against in relation to the competitive interview for a 5-year fixed term post. She drew attention to the way the interview process was conducted, the result, the errors and omission in the interview report form.

I am satisfied that the complainant has established the following facts based on the balance of probabilities

The Interview Record form in an open competition was altered without explanation from 18/25 to 16/25 in the research standing section which caused the complainant to be ranked fourth in the competition. The candidate and comparator marked third was single.
The marking of her comparator, Ms C, a single person was disturbed in the administration skills section to raise doubt on the integrity of the markings.
The Comparator had a reported lower level of experience than the complainant.
A requested appeal was denied which seemed in contravention of the respondent policy.
“establish and maintain appropriate mechanisms whereby staff or job applicants who feel that they have been unfairly treated can have their complaints investigated “extract from Respondent Equal Opportunities Policy
The Respondent withheld and coarsely redacted key documents on inquiry to raise transparency issues.
I found that these amounted to issues surrounding transparency and constituted inferences of discrimination which I required the respondent to address.

These facts are sufficient for me to draw an inference of discrimination and satisfy the test in Section 85A. I required a response from the Respondent.

It is timely for me to record at this stage that I found that the complainant had been successful in the 6-candidate shortlisting process during September, 2015. The informal meeting between the complainant and Ms B had concluded many weeks before this.

The Complainant had not objected to any of the proposed Interviewers in advance of the Interview process. There were 3 positions arising from the same competition, two full time and one-part time I reviewed the advertisement booklet and did not identify any inferences of discrimination there. The Complainant accepted that no discriminatory questions were asked at interview.

The difficulty I had with the respondent position was the paucity in documentation surrounding the interview process. While this alone is insufficient to make an automatic finding of discrimination, there were some opaque moments which I directly attributed to this vacuum.

Informal Meeting August 2015: Ms B

I considered Ms B to be a very cogent witness. I found her memory of the approach for support made by the complainant in the 2013 competition to be very clear. She said that she had to refrain from giving direct commentary so as not to jeopardise her overall role. I was struck by her evidence of the August 2015 meeting where she detected “an air of entitlement “expressed by the complainant. This caused her to withdraw a little in conversation. I found that the complainant did not appear to pick up on this nuance. Based on the evidence adduced, tested on cross examination, I could not attribute Ms Bs’ remarks as discriminatory. I found that she was in fact preserving her position as a member of the shortlisting and interview panel and was not prepared to venture outside this. I did however pick up on how keen the complainant was to take a 5-year full time contract at the school.

Shortlisting

The Complainant was one of 6 candidates who were shortlisted in September 2015.This was the maximum permitted.

3 The Interview

I found that the Respondent complied with the Regulations dated April 2014.I was a little confused on the interface between the “silent scores “and the final scores. I accept the evidence of Mr B who confirmed how marks were correlated in his presence. I found it extremely bad practice that Individual marking scores were shredded. They should have been retained. I note that most of the complainant’s case law referred to unsuccessful candidates, whereas the complainant was deemed appointable in this competition albeit not to the post she wanted.

I considered the mark adjustments for Ms C the comparator. I did not concur with the complainant’s representative when he submitted this had been altered. I saw a figure 8 indented on the page. I did not establish that the figure 7 was beneath this and replaced. I accept the Respondent evidence in this regard.

On the other hand , there was a clear and undisputed alteration in the complainants cumulative total from 18 to 16 in Research and she had not been in a position to secure a rationale for this change .This was a perennial reminder to her of her perceived exclusion from the only post she really wanted , the full time post as Ms C recorded a two point upward differential which placed the complainant in fourth position , but was still deemed appointable .

I did not establish that being asked whether she was interested in the 12 month part time post to be discriminatory? . While I have reservations on the vacuum surrounding the record of questions at interview, I accept the evidence of Ms B and Mr A that all candidates were asked the same questions. I have found from the evidence adduced that the complainant approached the interview with a very strong and determined focus of achieving the 5-year post and was absolutely devastated which this was lost to her. She had not factored in how the 12-month post would interface in her plans. I understand this.

The Complainant advocated strongly that 74 ought to have been her mark rather than 72. The Respondent was adamant that the validation signatures were added to the foot of the final markings and this was 72, unaltered for the complainant and 74 for the comparator. The first round offers went to Candidate 1 on 84 marks (married )and Candidate 2 on 78 marks (civil status unknown).

As stated earlier, it is not within my gift to revise this marking, I have sought to look behind these markings for evidence of discrimination. I found that the 74/72 adjustment was a mistake, rather than a deliberate miscalculation. It ought to have carried an explanation to the complainant.

I found that the feedback section was blank on candidate 1 form and scant on the complainants.

I found the heavily redacted documents to be very frustrating and unnecessary in this case. In line with my fellow Adjudicator/Equality Officer in Cleary V UCD, I also saw the protective veil in Section 8 of the Data Protection Act. In seeking to decide this case, I had to rely almost exclusively on witness evidence of Mr A, B and Ms C during the employer response to the inferences detected.

In this, I was guided by the evidence of the chair of the interview and Ms B. I found them to be Independent minded professionals with strong ethical standards and I found that they came to their conclusions on selection in accordance with the Interview Regulations and without reference to or regard for the civil status of the candidates. Mitchell applied. The Complainant was equally matched in terms of independent thinking and ethical standards. This is what prompted her to seek answers for being overlooked. Board of Management V a Worker EDA 1726 applied.

I was particularly struck by Ms Bs objective commentary when she reflected that she felt that the complainant would have performed better at interview.

4 Communication of the result:

I heard two very different accounts of the informal notification to internal candidates provided for in the Regulations. Both parties agreed on the short duration of the call. Both were divided on the content. Ms B told the hearing that the complainant was deemed appointable but not successful. The Complainant understood that she had failed and was told that she had no future in academics on balance, Ms Bs version of events is more compelling as it was borne out in the notification issued by Hr Central services some 6 days later where feedback was offered. I found that the complainant was traumatised on receiving the phone call. She was not aware that this was a standard action provided for in the Regulations and reserved for internal candidates. I found Ms B very clear on the integral positive part this played for internal candidates.

At the commencement of the hearing, the complainant confirmed that they would have one witness, the complainant herself. The Complainants husband attended in support and endeavoured to give an 11th hour witness testament on his proximity to the complainant when she received Ms Bs call. The Respondent objected to this and I accepted the objection.

I found it regrettable that feedback was not offered in the immediate aftermath of the competition by a member of the Selection Committee. The timetabled feedback meeting of January 28 was too late. I believe that this goes to the root of the case. Nobody from Human Resources was present during the complainant’s presentation at interview and the feedback when it was presented by Human Resources was too remote. I also found that the complainant relied a lot on an “informal intelligence “amongst her colleagues in terms of being aware that Candidate No 2 was never going to be a contender for acceptance of the position, however,I accept that the respondent was not aware of this.

The Aftermath:

In the aftermath of the announcement of panel places, the bureaucratic process of post allocation took over. It is by its very nature a tardy process and Christmas coming in the middle was a distraction. I was very struck by the complainant’s evidence where she stated that her dissatisfaction was manifested in her silence. I note that there is provision in the Regulations for a 12-month window in relation to offering posts. I cannot accept that the January 7 offer was an appeasement for the complainant’s appeal. I saw it as a sequential allocation of posts.

I completely accept that the complainant was devastated by not securing the 5-year post. However, I found that she did not appear to give consideration to the possibilities contained in the 12-month post. I accept that Ms B sought to give guidance on this post but this was rejected. It is fair to say that I found that an unbridged chasm developed for the complainant in relation to Ms B once the interview results emerged. I did not find this replicated in Ms B towards the complainant .

I found that the complainant experienced extremely bad practice in terms of being denied an avenue of appeal. There was provision for it in the Equal Opportunity policy and it should have been undertaken. I found the letter of 27 January directed towards the complainant to be hopelessly unfair and lacking in fair procedures but it was not discriminatory and failed to accentuate the positive standing of the complainant, who was at that time mid offer on the third post.

Taking everything into consideration, I did identify a laxness in terms of correlation and sharing of key documents, markings and on the management of untimely feedback which certainly points to an unfair approach but not a discriminatory one. I would urge the respondent to reflect on this aspect of my findings.

I found that the Respondent followed their own procedures in terms of advertising, selection and notification of that decision to the candidates. I have not found that the process was tainted by discrimination on the grounds of civil status. I did not find an imbalance in the numbers of married staff: single staff at the school. I did not establish that the complainant was treated less favourably due to her civil status. I found she was a recipient of a less than best practice recruitment process. I find that the respondent has managed to rebut the presumption of discrimination.

The claims of harassment and age discrimination were not included on the complaint form. I am satisfied that the respondent was not on prior notice of this claim. This is not before me for decision.

Claim for Victimisation:

I have heard both parties on this claim. Section 74(2) provides for Victimisation.

“victimisation” shall be construed in accordance with subsection (2).

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

(a ) a complaint of discrimination made by the employee to the employer,

( b ) any proceedings by a complainant,

( c ) an employee having represented or otherwise supported a complainant,

( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

The is a very important component in the field of Discrimination . A potential complainant must have space and scope to raise complaints of alleged discrimination and not fear the consequences.

The Labour Court in Minister of Defence V Tom Barrett in a 2015 case EDA 1516, referred to the test for Victimisation.

The key elements of victimisation provided for in s.74(2) of the Employment Equality Acts therefore are as follows:

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

The employee was subjected to adverse treatment by the respondent, and.

The adverse treatment was in reaction to the protected action having been taken by the employee. (Dept. of Defence V Barrett) Bolger, Bruton and Kimber, 2012.Some 5 days later, the complainant received a response which advised that there was no internal appeal mechanism but went on to make commentary on the three substantive concerns.Some 6 days later, the complainant received redacted personal information in her freedom of information request. This clearly troubled her. On the same day, the complainant communicated that she would not accept the offer of the part time position. She added that she had decided to leave the Respondent University.I am satisfied that the letter of January 21 constitutes an action provided for in Section 74(2) of the Act. The Complainant made a complaint of discrimination. I can consider the complaint against that central date.I note that the Respondent Grievance procedure does not provide an avenue for appeal of an interview. The Respondent told me this was agreed with the Unions and then clarified that it was not agreed. The Grievance procedure is a fine policy with expansive scope for representation.The Policy provided that “Any Individual with a concern /grievance or complaint of discrimination or retaliation under this policy should utilise the appropriate procedure”.Establish and maintain mechanisms within the university to deal with complaints concerning discrimination and harassment.Between 21-27 January 2016, I found that the opportunity to process a complaint of Discrimination was procedurally contained by the Respondent. I can accept that the complaint came a long time after the recruitment event. I can also accept that the key offer of performance feedback was scheduled for January 28. The Complainant did not avail of this forum .In Barrett, The Labour Court determined the adverse treatment complained of pre- dated the complaint made. In the instant case, the facts are distinguished from Barrett but I find that they amount to a prime facie case of victimisation which the respondent cannot defend. I have found that the complaint of victimisation succeeds.

However, I found that the complainant was denied a proper avenue for her complaint within the respondent University and in my opinion, this amounts to adverse treatment directly attributable to the action taken to address prohibited conduct complained of.
Establish and maintain appropriate mechanisms whereby staff or job applicants who feel that they have been unfairly treated can have their complaints investigated.
The stated objectives of the Policy were among others:
I then reviewed the Respondent Equality /Diversity policy and I found many interesting statements. I heard that the Respondent was a member of a specific recruitment award system. The Complainant referred to this as a global award but I accept that the Respondent was accredited with an award.
I found that the application for appeal was grounded in a complaint of discrimination and this appears to have been overlooked by the Respondent. The approach adopted by the Respondent was to deny an appeal mechanism while taking the letter and undertaking a “desk top “review. I found the response of January 26 quite harsh, partisan and lacking in fair procedures. I would have expected the complainant to take issue with this response within the confines of her employment. However, she chose to leave her employment before doing so. This had implications for her research work. The Respondent had extended her opportunity for decision making for the part time position.
I looked behind both letters of January 21,2016 from the complainant and January 26,2016 response from the Respondent, I reviewed the provisions of the Respondent Grievance Policy 2013, Equality /Diversity Policy 2008 and policy on Equality in recruitment ,2009.
The Complainant submitted that she believed that she was victimised following this action by the Respondent vigorous pursuance of an over payment. I found no basis for this contention as I accept that the Respondent acted in accordance of Government policy in seeking to recoup an over payment. I appreciate that the complainant held a genuine belief in this regard.
I am satisfied that the complainant lodged an appeal on the Lecturer 5-year competition dated 21 January 2016, some 7 weeks post the interview. The appeal alluded to “unfair discrimination in my case on the inter related grounds of my gender, age and marital status. …. It appears to be the case that my recent marriage has placed a determining negative bias on my standing and value in the school “. The letter did not seek activation of any particular University policy.
Once these proofs are met, there is no defence within the legislation.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have completed my investigation and once again apologise for the delay in bringing this case to conclusion at first instance. I have found that the complainant established a prime facie case of discrimination on civil grounds. However, this has been successfully rebutted by the Respondent. The claim of discrimination has not succeeded.

I have also found that the claim for victimisation has succeeded.

Given that the complainant no longer works at the University and has expressed a genuine desire to put closure on this difficult period, I believe that an order of compensation best meets the requirement for an effective, proportionate and dissuasive penalty.

In accordance with Section 82 of the Act, I order the Respondent to pay the complainant €9,500 in compensation for the distress caused by victimisation. This award does not attract taxation.
I also order the Respondent to complete a full review of Equality /Diversity Policies within the University, to secure immediate harmonisation and inclusion of an easily identifiable pathway for any complaint of discrimination. This should be completed within three months of this decision and training provided to first line managers and staff in the subsequent application.

Dated: 21st August 2018.

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Discrimination on Civil Status, Victimisation.