DEC-E2018-009

EMPLOYMENT EQUALITY ACTS 1998-2015 

Decision DEC-E2018-009

PARTIES 

Dr Anne Cleary (represented by Ms Claire Bruton, B.L., instructed by Hayes Solicitors) 

and 

University College Dublin (represented by Arthur Cox Solicitors)

File Reference: et-158593-ee-15

Date of Issue: 26th March 2018 

Table of Contents

1. Claim.
2. Summary of the Complainant’s Written Submission.
3. Summary of the Respondent’s Written Submission.
4. Conclusions of the Equality Officer.
5. Decision.

Keywords: gender – age – access to promotion

1.   Claim 

• 1. The case concerns a claim by Dr Anne Cleary that University College Dublin discriminated against her on the grounds of gender and age contrary to Sections 6(2)(a) and (f) of the Employment Equality Acts 1998 to 2011, in terms of discrimination in relation to promotion.
• 2. The complainant referred complaints under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 5 and 6 August 2015, respectively. The second of these complaints was on gender and age. A submission was received from the complainant on 9 February 2016. A submission was received from the respondent on 26 April 2016. On 24 May 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 1 September 2016, which was adjourned and then continued on 16 November 2016 and concluded on 13 June 2017. Additional evidence was requested from the complainant on 1 September 2016 and from the respondent on 16 November 2016 and received on 30 May 2017.

2.   Summary of the Complainant’s Written Submission 

• 1. The complainant submits that she has worked for the respondent since 1992, as an academic sociologist. She joined the respondent School of Sociology coming from a health research background, and received academic tenure at the earliest possible date.   She has been at the grade of Lecturer since 1996, and obtained her PhD in 2006. In her submission, she provides an extensive overview over her academic accomplishments and successes in obtaining grant funding.
• 2. The complainant applied for promotion to Senior Lecturer in the respondent’s 2012/13 promotion round. When she was unsuccessful, she submitted an appeal, which was successful in that the Appeal Committee requested the University Committee on Academic Appointments, Tenure and Promotion (UCAAPT) to reconsider the complainant’s application. The complainant was again unsuccessful. She was advised of this fact on 10 February 2015.
• 3. In her written submission received on 9 February 2016, the complainant states, for the first time, that she considers that she was discriminated against on the ground of age, since older Lecturers were significantly less successful in the promotion round, and specifically, that her successful comparator was 20 years younger than herself. The complainant criticises the respondent’s “five-year rule”, which means that work outside of a reference period of five years is disregarded for the purpose of assessing suitability for promotion, which she states leaves older academics at a disadvantage.
• 4. However, in her complaint on the ground of gender, which, on the face of it, really ought to be a complaint on the ground of family status, the complainant states that while caring for her disabled child, her academic career progressed more slowly, and in particular, that she only obtained her PhD somewhat later than other academics. She then goes on to point out in her submission that “since obtaining my PhD in 2006, my progress in these areas has been significantly above average”.   The thought occurs that therefore, the “five-year rule” should have been to the complainant’s advantage. However, the complainant also states that a change which the respondent made to its promotion system, from a “benchmarking” one to a “competitive” one, left her without sufficient time to make necessary adjustments.
• 5. Regarding her complaint on the ground of gender, the complainant further submits that more men than women applied for promotion to senior lecturer, and more men than women got promoted. She also states that almost 80% of female academics within the respondent organisation are employed at Lecturer grade.
• 6. The complainant further states that the promotion round was generally conducted in an intransparent manner, in contradiction of the respondent’s stated goal that its promotions system should be fair, unambiguous and transparent. In particular, she complains that the UCAAPT reduced the marks given to her by the College of Humans Sciences (CHS) committee, and critically, that it reduced her mark for excellence in teaching below the required standard, which made the complainant ineligible for promotion. The complainant states that following the initial ranking by CHS, her score was 19 and she was ranked 14th out of 26 applicants. UCAAPT reduced her score by a full five marks. She submits that two other colleagues received the same marks as she did, but were ranked differently, and that one ultimately received promotion. She also asserts that at least one previously unranked person had their scores increased and was promoted, whereas another candidate ranked 2nd by the CHS committee was removed altogether from the shortlist and that the reasons for doing so were later found by the Appeals Committee to be entirely without foundation.
• 7. The complainant also points out that 17 of the 40 applicants for promotion appealed the outcome of their application and were supported by the Appeal Committee, but that over the years, over 90% of those cases were denied by the UCAAPT. The complainant states that she is aware of only two cases, which she terms clearly anomalous and which she asserts, could have had legal consequences for the respondent, were successful with UCAAPT post-appeal.

3.   Summary of the Respondent’s Written Submission 

• 1. The respondent denies discriminating the complainant as alleged or at all. As a preliminary point, it argues that the entire complaint is out of time, as it asserts that time began to run when the complainant received her initial notification that she had been unsuccessful in the promotion competition, by letter of the respondent’s Registrar from 16 August 2013.   While the respondent does set out the appeals process which the complainant underwent, and while it acknowledges repeatedly throughout its submission that this appeals process can lead to overturned promotion decisions, it does not include this fact in its argument on the timeliness of the complaint.
• 2. With regard to the substantive case, the respondent provides a detailed explanation of its promotion processes in its submission. It states that while in earlier years, any teaching personnel in the Lecturer grade who achieved certain benchmarks would have been promoted to Senior Lecturer, financial difficulties had forced the respondent more recently to make this promotion, which can only be achieved internally, a competitive process. It also states that these process changes affected all candidates equally and is therefore not discriminatory.
• 3. It submits that when the UCAAPT came to consider recommendations for promotion to Senior Lecturer on a university-wide basis, the College of Human Sciences, of which the School of Sociology is a part, had given higher markings across categories than other colleges. Therefore the markings were brought down to bring them in line with other colleges. The respondent also submits that the complainant received detailed feedback on where her teaching accomplishments, while generally considered good, fell short of reaching the “excellent” standard required to be eligible for promotion.
• 4. With regard to the complainant’s complaint of age discrimination, the respondent states that only four candidates, less than 3% out of a total of 149, applied for promotion to Senior Lecturer. Hence it states that the fact that none of these achieved promotion is not statistically significant, as their number is too small to allow any such conclusions. Specifically regarding the complainant’s comparator, the respondent maintains that this Lecturer achieved better marks, in particular, that she achieved the excellence in teaching standard, and hence was promoted. It denies that her promotion is in any way tainted by discrimination.
• 5. On the complainant’s issue with the five-year rule, the respondent observes that this was in place because the previous round of promotions to Senior Lecturer had taken place five years earlier. The respondent states that when promotions to Senior Lecturer happened every three years, a similar “three-year rule” was in place to disregard all accomplishments that candidates would have used in a previous application. It further states that the rule only applied to publications, recent teaching achievements and recent contributions to the college, university and wider community. In particular, it states that the rule did not apply to the areas of teaching excellence where the complainant was downgraded by UCAAPT.
• 6. The respondent also denies the complainant’s allegations of discrimination on the grounds of gender and family status. It points out that not only is her chosen comparator a woman, but that of the 14 women and 12 men who applied for promotion to Senior Lecturer from the College of Human Sciences, 11 women and 2 men were successful. It further states that while one man was indeed moved from “not ranked” to “ranked”, four men and two women were moved from “ranked” to “not ranked” by the UCAAPT. In terms of age, the 26 candidates which had their scores reduced were spread across the age range from 30 to 65 years: five candidates were aged between 30 and 39 years, 13 candidates were aged between 40 to 49 years, 7 candidates were aged between 50 to 59 years, and one candidate, the complainant, was in the 60 to 65-year age bracket. The respondent therefore denies that there was gender or age discrimination in the assessment process carried out by UCAAPT.
• 7. With regard to the complainant’s family status, it states that the family responsibilities of the complainant are entirely unrelated to her ability to fulfil her role as Lecturer, or the position of Senior Lecturer and accordingly were not considered by the various committees which dealt with her application. It submits that it would be wholly inappropriate for the respondent to consider a candidate’s family circumstances with regard to a potential promotion.
• 8. In summary, the respondent contends that the complainant has failed to establish a prima facie case of discrimination, and that her complaint should be dismissed.

4.   Conclusions of the Equality Officer 

• 1. The issue for decision in this case is whether the complainant was discriminatorily dismissed within the meaning of the Acts.
• 2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.
• 3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.

Preliminary issue – Time limits 

• 4. As regards the respondent’s objections that the complaint is out of time; I noted already that the respondent itself accepts in its submission that it was possible for particular outcomes to be overturned on appeal and that this did indeed occur, as confirmed in oral evidence by the respondent’s witnesses. I am therefore satisfied that the appeals process did not simply re-affirm a previous decision and that it falls within the parameters established in Cast v. Croydon College [[1998] EWCA Civ 498, [1998] ICR 500, [1998] IRLR 318]. There, the issue was whether the complainant’s repeated requests to work part-time upon her return from maternity leave where simply routinely refused or reconsidered by the respondent college. The England and Wales Court of Appeals held that since the Industrial Tribunal who heard the original complaint had found that they were reconsidered, time should run from the date of the final refusal.
• 5. In other words, the Court held that an appeal which was a genuine reconsideration of a previous decision, rather than just an affirmation of it, meant that time starts to run from the date of the outcome of the appeal rather than the date of the original decision. Based on what I have set out above, I am satisfied that this is the case here, and that the complainant is entitled to count time from the date of the outcome of her appeal.
• 6. The appeals outcome was communicated to the complainant on 10 February 2015, and the complaints were filed on 6 August 2015. This is within the time limit set out in S. 77(5). Accordingly, I am satisfied that I have jurisdiction to investigate the within complaints.

The substantive case 

• 7. It is common case that 11 women and two men from the College of Human Sciences succeeded in obtaining promotion to Senior Lecturer, out of 14 female and 12 male original applicants. Considering this evidence, the complainant’s complaint of discrimination on the ground of gender cannot succeed.   Whatever other faults the promotion process may have had, which I will consider more fully below, I am satisfied that it was not discriminatory against women.
• 8. The complainant gave extensive evidence of her career with the respondent. She started working for the respondent part-time in 1992, and full-time in 1992, was made permanent in 1996 and achieved academic tenure in 1997. In 2006, she completed her PhD. She explained that family responsibilities delayed her in obtaining that degree. She started working on it in 2000, but in her words: “gathering data is hard, writing them up is harder”.
• 9. Dr Cleary had made two previous applications for promotion to Senior Lecturer, but accepted that both of those times, her academic profile was probably not sufficiently developed to warrant success. In contrast, in the within competition, she felt “at least as qualified or more than some of the people promoted”.   She stated that she had the highest research funding in her school, had been able to employ Postdoctoral staff, had supervised three PhD these and one Master’s thesis by research (M. Litt.) The complainant was also awarded a Fulbright scholarship to Berkeley and Harvard Universities in 2009. She pointed out that all other Irish academics who received this scholarship were either full professors or senior lecturers and that the application process was “extremely competitive”. The complainant also obtained an Irish Research Council grant and a senior research scholarship for her PhD.
• 10. As regards her teaching, the complainant stated that she “loved teaching” and was “absolutely committed to it”. She felt that she was able to construct good courses, that her courses were very oversubscribed by students and that she was known informally within her school as a good teacher.   She also authored two textbooks, a contribution she listed under teaching and learning for her application.
• 11. One of the complainant’s former students, now Dr. A., affirmed these contentions as regards the complainant’s commitment to teaching, and the quality of her teaching, in his own evidence. The respondent did not challenge his evidence in cross-examination.
• 12. The complainant had also been nominated, in 1997, for a President’s Award for teaching. When the fact that she never actually received a President’s Award was put to her in cross-examination, she pointed out that these awards were too rarely bestowed – her exact words were “unusual and infrequent” – to make them a meaningful criterion to assess excellence in teaching. She further pointed out that most of those promoted did not have that award, either.
• 13. In terms of committee service, the complainant stated that she served temporarily as head of research, on a research committee and, on the appointment of the Department of Health and Children, as chair of the research ethics committee for the Growing Up in Ireland study. The complainant pointed out that whilst committee memberships in UCD are now handled by open competition, this was not the case at the time of her application. The complainant therefore raised the question: if being on a committee is what is required for promotion, then how does one get on to one? This was a point also taken up by her expert witness, who confirmed that in the absence of open competitive processes, the requirement to serve on academic committees can work against certain candidate groups, such as women.
• 14. The complainant’s expert witness, Dr B., is the Director of the King’s Learning Institute, which centrally supports learning and teaching at King’s College London. She also taught for six years in the NUI system and is thus familiar with Irish academic work environments.   Dr B. pointed out that the complainant had a lot of external validation of her excellence, like her Fulbright scholarship and her Irish Research Council grant.   In Dr B.’s words, going by the total of the complainant’s contributions it “doesn’t chime that she is only a lecturer”. She also remarked that it is very hard to obtain funding to pay PhD students and Postdocs and that this should be considered an achievement in its own right. Dr B. further pointed out that senior lecturer is a recognition of previous contributions, rather than an actual promotion like that to full professor. It is in many ways a reward for work already done. She therefore argued that the older a person is, the greater should be their chance to obtain it, because of a greater contribution. She expressed astonishment that the complainant’s 20 years’ worth of contributions to the respondent and the greater community were still not good enough to earn her a promotion to senior lecturer.
• 15. Turning to the details of the complainant’s evidence on age discrimination, the complainant stated that she was 61 years of age when she applied for promotion to Senior Lecturer. She supplied a data table which shows that by age, a steadily falling percentage of applicants were promoted to Senior Lecturer: 69.7% of applicants in the 30-39 age group, 51.7% in the 40-49 age group and 48% in the 50-59 age. Most notably, not a single of the four candidates in the 60-65 age group, to whom the complainant belongs, was promoted. The complainant also provided evidence, insofar as she was able to adduce it from within her professional environment, which shows that younger colleagues promoted over her were by no means significantly better qualified. Whilst I acknowledge the respondent’s argument that the statistical argument on its own is not significant due to the small number of academic staff over sixty who applied for promotion, I find that in conjunction with the other facts which the complainant has been able to adduce, amounts to a valid prima facie that the complainant may have been discriminated on the ground of age. In this regard, the within case should be distinguished from a case like ADJ-00003882, A Complainant v. A Public Employer, which failed on the weakness of the statistical and the substantive evidence.  I also want to note that whilst the fact that no applicant over 60 achieved promotion may not be a statistically significant fact due to small numbers, it remains a fact nevertheless and thus acceptable as evidence. Lastly, I do put some store in the evidence from the complainant’s expert witness Dr B., that since senior lecturer is a promotion mostly based on prior contribution, older candidates should normally have an advantage. This argument makes cogent sense, and makes the reverse dynamic in play here, whereby candidates were proportionally more successful the younger they were, vulnerable to an assumption of discrimination on the ground of age.
• 16. The prima facie case, which I am satisfied the complainant has thus established is further underpinned by examining the career of the younger female academic whom the complainant chose has her comparator.
• 17. Dr. D., the complainant’s comparator, is 20 years younger than the complainant, and in the view of the complainant, a gifted academic who is still developing her career. At the time of the competition, Dr D. had no Fulbright, had only secured research funding of about €5000, had not employed any postdocs, and had significantly fewer publications than the complainant. Like the complainant, Dr D. had also not been awarded a President’s Award for Teaching and Learning. She had been awarded a fellowship in teaching and learning for a study on the retention of first year students. She was also a member of the editorial board of the same academic journal of which the complainant was in fact the editor.   Dr D. had supervised 3 PhDs.   Despite this differential in achievements, Dr. D. had retained her mark of “excellent” in teaching and learning which made it possible for her to obtain promotion to Senior Lecturer.
• 18. The respondent, in its cross-examination of the complainant, put great emphasis on the fact that she had not received a President’s Award for teaching and on what it saw as double-counting of achievements by the complainant in the sub-categories which comprise the teaching and learning category. The respondent’s main witness, Professor E., who chaired the UCAAPT committee at which the complainant’s application was downgraded, stated that whilst the complainant achieved a mark of “excellent” in some sub-categories, she did not do so in others. He also said that other candidates had either a teaching award or a teaching fellowship, even though he confirmed that a President’s Award in teaching and learning was not mandatory to achieve promotion. In his overall evidence, Professor E. stuck to generalities about “academic judgement and consistency” in terms of the UCAAPT review of the applications. He confirmed that all applications were considered in full, but stated that no marks for the complainant or other candidates were available.
• 19. In light of this evidence, I decided to adjourn the proceedings, and to request the application forms of the other candidates, anonymised, from the respondent pursuant to my powers under S. 95 of the Employment Equality Acts. My thinking on this was that the committee might well have re-evaluated candidates for promotion for reasons unrelated to age, but that without knowing what kinds of narratives of achievement were successful, this could not be properly evaluated. In particular, the re-evaluation of the complainant’s achievements by the UCAAPT, which her cross-examination was focussed on, makes little sense if it cannot be compared with how others fared before the UCAAPT. For example, someone who like the complainant did not have a President’s Award in teaching, might have succeeded because of the evaluation of their research. Candidates other than the complainant may have miscategorised their achievements in particular areas with or without penalty. What particular facts, in the overall context of an academic career, led to an upgrade or downgrade at UCAAPT level? These are all facts that certainly fall within “academic judgment” and need not be discriminatory. Given the wide variety of academic careers and achievements, these kinds of assessments are not a hard science and a degree of subjectivity on the part of senior decision-makers is probably unavoidable. As long as this subjectivity is not linked to protected characteristics, it is not unlawful.
• 20. Therefore, as I said to both parties when I made the request, my decision would be much better grounded in evidence either way if I had access to this material.
• 21. I also want to note that the respondent did submit the College Committee assessment forms (as opposed to any UCAAPT documents) in the process. But apart from the fact that it was UCAAPT which made the final decision on appeal, the remarks on the college committee forms are so bland as to border on meaningless. In the case of a candidate who scored higher than the complainant on teaching and learning, it is hard to see how their contribution was different from the complainant’s solely on the basis of the annotations. Furthermore, the complainant did succeed at College Committee level before being downgraded by UCAAPT.
• 22. As regards my request for the application forms, the respondent immediately voiced concerns about data protection issues connected with providing the information. The complainant’s counsel and solicitor, about whose professional integrity I have no doubts, gave detailed undertakings of how their copy of the documents would be secured in the offices of the complainant’s solicitors. In correspondence with the respondent’s solicitor, I expressed the view that my request fell within the exemptions set out in Section 8(e) of the Data Protection Acts 1998 to 2003, and that this exemption provided a legal shield for the respondent to provide the documentation as requested.
• 23. I further reminded the respondent, repeatedly, that proceedings under the Employment Equality Acts are private and that anyone who used the information provided outside the very strict parameters set down in Section 97 of the Acts, would be guilty of an offence. I should perhaps also say in this context that the complainant, by her personality and demeanour, did not strike me as the kind of person who would engage in any such kind of conduct. I have already noted the professionalism of her representatives.
• 24. The respondent did provide the application forms eventually, but they were so extensively redacted as to be useless for the purpose of establishing what kind of academic judgement was at work in the UCAAPT appeals process as outlined above. I wish to note that some facts were provided, but not only do I consider these too devoid of context to be useful in the within case, but to rely on them would also go directly against Professor E.’s own evidence, which I accept, that all applications were considered by UCAAPT in their entirety. Therefore, in the absence of extant notes or marking schemes from the UCAAPT deliberations – I am again accepting Professor E.’s evidence on this matter – it would have been necessary to see what UCAAPT has seen to be satisfied that discriminatory motives had no part in its assessment of the candidates.
• 25. To give an example of the level of redaction, all titles of theses, articles, books, names of expert committees served on etc. were blacked out, as were close to entire narratives of personal achievement. The representatives of the complainant immediately protested this extensive redaction and on review of the material, insofar as there was anything to review, I came to share these concerns. When I wrote to the respondent on this, I postponed the date of the resumed hearing and gave the respondent another four weeks and an opportunity to re-submit the material in a less redacted form. I also notified the respondent that I would consider drawing inferences from the way in which my request had been complied with, pursuant to my powers under S. 76 of the Employment Equality Acts. The representatives of the complainant confirmed, for the avoidance of doubt, that the complainant had made an EE2 request for information from the respondent early on in the litigation.
• 26. The respondent did not avail of this opportunity, which left me with the state of evidence as described above. I am satisfied that I gave the respondent every opportunity to put in a defence to the within claim, with as much protection against legal exposure in other fora as the provisions of the Employment Equality Acts can provide. The respondent did not do so. Therefore, on the basis of the evidence available, the complainant is entitled to succeed.

5.   Decision 

• 1. This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
• 2. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Acts 1998-2015, that the respondent did not discriminate against the complainant on the ground of gender, in terms of access to promotion, pursuant to S. 6(2)(a) and 8(1)(d), but that it did discriminate against her on the ground of age, also in terms of access to promotion, pursuant to S. 6(2)(f) and 8(1)(d) of the Acts.
• 3. In accordance with Section 82 of the Act, I order the respondent to:

(a) Promote Dr Anne Cleary retrospectively to Senior Lecturer from 15 February 2015 and that she be paid in full the necessary adjustment in salary and any other benefits applying to the post accruing with effect from that date, and in particular, that Dr Cleary’s pension entitlements and payments are upgraded accordingly, subject to lawful deductions including income tax.

(b) Award the complainant €30,000 in compensation. This part is redress for the infringement of Dr Cleary’s statutory rights and, therefore, not subject to income tax.

______________________

Stephen Bonnlander

Equality Officer/Adjudication Officer

26 March 2018