EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018- 010
PARTIES:
Ms. Leann Lane (Represented by IFUT)
Vs
Mater Dei Institute of Education (Represented by IBEC)
FILE No: et-159304-ee-15
DATE OF ISSUE: 16th of March, 2018
1. Dispute
This dispute involves a claim by the complainant that she was discriminated against by the respondent on the grounds of gender and religion, in relation to getting a promotion.
2. Background
2.1 The complainant referred a complaint against the respondent under the Equal Status Acts 2000-2015 to the Equality Tribunal on the 10th of August, 2015.
2.2 In accordance with powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 9th of June 2017 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 19th of October, 2017. Final information in relation to this matter was received on 19th of February, 2018.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that:
she was discriminated against, on grounds of gender and religion when she was unsuccessful in her application for promotion to senior lecturer in February 2015.
4. Summary of Respondent’s case
4.1 The respondent submits that
the complainant was not successful in the promotion competition as she did not score as highly as successful candidates.
5. Pre-liminary Issue – Equal Status Act
5.1 The complainant in submitting her complaint has done so under the Equal Status Acts. The complainant at the hearing clarified that it was her intention to submit her complaint under the Employment Equality Acts as the matters complained of relate to an employment matter specifically in relation to the alleged incorrect assessment of her application for senior lecturer by a promotions panel. The complainant submits that the Equal Status form was the form which came up on screen and that she had submitted her complaint on this form by mistake.
5.3 In considering the complainant’s request to pursue the claim under the Employment Equality Acts despite the fact that she submitted it under the Equal Status Acts, I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 . In that case McGovern J. held that it was permissible to amend a claim set out in form EE.1 where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
5.4 In the present case the complainant had submitted the incorrect form but had still referred to an allegation of discriminatory treatment on the ground of gender and religion in the narrative of the form. In addition, the complainant on the complaint form stated that her complaint related to incorrect assessment of her application by a promotions panel and set out in detail how she had worked for the respondent as a lecturer and gave details of her experience and achievements in that employment. The complaint form was submitted to the tribunal on the 10 August 2015 and copied to the respondent on 16th of October, 2015.
5.5 I am thus satisfied that the respondent was on notice that the subject matter of the complaint related to an employment matter, more specifically in relation to the respondent’s failure to promote the complainant to the post of senior lecturer in 2015.
5.6 I am also satisfied that the respondent has been on notice of the claim of discriminatory treatment on the ground of gender and religion in relation to a promotion competition during her employment with the respondent and is in no way prejudiced by the complainant pursuing a claim under the Employment Equality Acts despite the fact that she had submitted her initial complaint under the Equal Status Acts.
5.7 I am satisfied given all of the circumstances of the present case, that it would not be contrary to fair procedures and natural justice for me to consider the complainant’s allegation of discriminatory treatment grounds of gender and religion under the Employment Equality Acts 2008 to 2015. Accordingly, I am satisfied that I do have jurisdiction to permit the complainant to proceed with the allegation of discriminatory treatment grounds of gender and religion under the Employment Equality Acts 2008-2015.
Preliminary Issue Time Limits
6.1 The respondent submits that the complaint is out of time as it was not submitted within six months of the last date of alleged discrimination. The complaint form submitted by the complainant states that the most recent act of discrimination took place on the 10th of February, 2015 which is the date on which the complainant was notified that she was unsuccessful in the competition for promotion to senior lecturer. The complaint was submitted to the WRC on the 10th of August, 2015.
6.2 Section 77(5) of the Acts provides as follows:
“(a)Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
6.3 It is submitted that the last date of discrimination cited by the complainant on the complaint form is 10th of February, 2015. The complaint form was submitted on the 10th of August 2015 thus 6 months and 1 day after the last date of discrimination provided in the complaint form. This matter was brought to the complainant’s attention in correspondence from the Tribunal in 2015 and again at the hearing of the matter. The complainant at the hearing submitted that the last act of discrimination did not actually take place until the 20th of May 2015 when she was advised of the outcome of her appeal of the respondent’s decision not to promote her. The complainant submits that following notification that her application for promotion was unsuccessful she appealed the decision and was informed of the outcome of this appeal process on the 20th of May 2015 on which date she was advised that her appeal was unsuccessful and that the earlier decision of the respondent stands. The complainant submits that she then proceeded to lodge a complaint with the WRC.
6.4 In deciding whether or not the last date of discrimination should be taken to be the date of the original decision or the date on which the outcome of the appeal process was communicated to the complainant I am guided by the decision of the UK Court of Appeal in Cast Vs Croydon College UK Court of Appeal in which it was found that
“a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a full consideration of the matter and is not merely a reference back to a previous decision”
6.5 In the present case the Appeal process was outlined in the document outlining the Policy Procedure Criteria and Guidelines for promotion to Senior Lecturer. It states that Appeals can be made to the Governing Board “only in respect of an alleged irregularity in procedure” . The Appeal procedure states that an appeal can be made to the Director in the first place who shall discuss matter with the applicant (step 1) and if the matter cannot be resolved the Director shall nominate an external senior academic to investigate the appeal and to make a determination as to whether any material irregularity occurred (step 2). If no material irregularity is found then the appeal shall be disallowed but if the determination is that there had been a material irregularity the Director shall refer the application to the APC for reconsideration (step 3).
6.6 In the present case the complainant submitted her appeal to the Director after which a senior academic person was nominated to investigate the appeal and make a determination (step 2). The nominated person Ms. S was tasked with determining if correct procedure was followed in this promotion process. The outcome of Ms. S’s review was that there was no procedural irregularity in the composition of the APC or in the way the APC carried out its functions. The complainant was issued with a letter from the Director on 20th of May 2015 enclosing a copy of Ms. S’s determination in respect of the appeal and stating that following on from this the Governing Board has now disallowed the complainant’s appeal.
6.7 It is thus clear from the procedure set out that the complainant’s appeal could have, but did not progress to the stage where her application was referred back to the APC for full reconsideration as a determination was made at step 2 that no material irregularity had taken place.
6.8 It is thus clear that had the outcome of step 2 of the appeals process found that a material irregularity had occurred, then the complainant’s appeal would have progressed to stage 3 in which case her application would have been referred back to the APC for reconsideration. It is also clear that the appeal process if it progressed to stage 3 would involve a full re consideration of the matter by the APC which would have to have the potential to change the outcome of the earlier decision which was the subject matter of the appeal. I am thus satisfied that the result of the appeal process was not merely a reference back to a previous decision and that it could have had the effect of altering the original decision not to promote the complainant.
6.9 Accordingly I am satisfied that the last date of discrimination in the present case is the date on which the complainant was notified of the outcome of her appeal. Thus, the last date of discrimination is the 20th of May 2015 and the complaint was submitted to the Equality Tribunal on the 10th of August 2015. As the claim was made within six months of the last date of alleged discrimination, I find that it is in time in accordance with section 77 (5) of the Employment Equality Acts.
Findings and Conclusions of the Equality Officer
7.1 The issue for decision by me now is, if, the respondent discriminated against the complainant, on grounds of gender and religion, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to a competition for promotion to Senior Lecturer in which the complainant was unsuccessful.
7.2 In reaching my Decision I have considered all the submissions, oral and written, made to me during my investigation as well as the evidence of both parties at the Hearing.
7.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A:
" provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.
7.4 In Madarassy v Nomura International plc,[2007] IRLR 246 the Court of Appeal for England and Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof. In a judgment concurred with by Laws and Maurice Kay LJJ., Mummery LJ held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation be unlawful discrimination. If the Tribunal makes that finding then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination.
7.5 The Tribunal/Commission and the Labour Court have consistently held that it is not the responsibility of the Tribunal to decide who was the most meritorious candidate for a position rather it is for the Tribunal to determine whether the Complainant was discriminated against on any of the grounds outlined in the Acts.
7.6 Section 6(1) of the Employment Equality Acts, 1998 to 2015 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”
Section 6(2)(a) & (e) of the Acts defines the discriminatory grounds of gender and religion as follows – “as between any 2 persons, ...
( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),….
( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”), .".
7.7 I must now assess whether the complainant has succeeded in establishing a prima facie case that she was unsuccessful in the promotion competition due to her gender and religion. It is agreedbetween the parties that the complainant was unsuccessful in the promotion competition. The complainant submits that this was due to her gender and religion.
7.8 The respondent advised the hearing that the complainant was not successful as she did not score as highly as successful candidates. The complainant when questioned, stated that the interview panel had not made any reference to her gender or religion and had not asked any questions or made any comment in relation to gender and or religion.
7.9 The respondent advised the hearing that the decision in relation to the promotions was made by a promotions panel and was a paper based process conducted on the application forms provided by the applicants. The respondent advised the hearing that the posts were advertised internally and that applications were requested from all eligible candidates. The respondent advised the hearing that seven applications were received and that there were 4 successful applicants and 3 unsuccessful applicants as there were only 4 posts to be filled. The complainant’s application was ranked 6th out of the seven candidates.
Religion Ground
8.1 The complainant submits that three of the four successful applicants were members of religious orders in that two of them were priests and one was a nun. The complainant went on to state that the fourth successful candidate was a lay person and a male but stated that he was teaching a faith based subject. The respondent advised the hearing that the religion of candidates was not known by the panel nor was it relevant. The respondent went on to state that the panel would not even have been aware from the application forms whether an applicant was religious or not as applicants did not use their religious titles.
8.2 The complainant at the hearing stated that it was not her claim that she was unsuccessful due to her religion or non-religion or due the fact that she is an atheist but that her claim was that candidates teaching ‘faith based subjects’ had an advantage over those in non-faith based subjects. The complainant submits that marks were awarded for teaching larger classes and she states that this gives an advantage to those who work in Theology and Education who have larger classes than those working in Humanities due to the fact that religious studies is compulsory for all students taking in BA and B Rel degrees.
8.3 The complainant advised the hearing that of the 4 successful candidates 2 were priests and one was a nun while the other was a lay person who taught religious studies. She stated that the competition was skewed in favour of those in faith based teaching. In examining this assertion I must be satisfied that the complainant has the locus standi to take a claim on grounds of religion. The Acts define the ground of religion as..
( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”), .”.
8.4 Thus the discriminatory treatment must be due to the fact that the complainant is of a particular religion or religious belief or has no religious belief and that other successful candidates are of a different religion or religious belief or no religious beliefs. The complainant advised the hearing that her claim was based on her contention that she was treated less favourably due to the fact that she did not ‘teach a faith based subject’ and not due to the fact that she is an atheist. In examining this statement in conjunction with the definition of discrimination and the discriminatory grounds within the legislation it is clear that the teaching or non-teaching of ‘a faith based subject’ does not amount to a discriminatory ground under the legislation. The very fact that the complainant has stated that her claim is not due to her religion but due to the fact that she did not teach ‘a faith based subject’ means that her claim is not being taken on a ground which is a protected and personal characteristic as provided for under the Acts. The complainant has outlined that her claim in respect of religion relates to the teaching of a faith based subject which does not necessarily mean that an individual is of a particular religious belief covered by the religion ground.
8.5 The complainant at the hearing went on to state that she was not claiming that she had been unsuccessful in her application due to the fact that she was an atheist but that she was unsuccessful due to the fact that she was not teaching a faith based subject. This does not necessarily mean that those who teach religious subjects can be assumed to be of a particular religious belief nor does it imply that those who do not teach religious subjects are of a particular religious belief.
8.6 Accordingly this aspect of the complaint must fail as the complaint which is being taken on the religion ground is not based on a protected and personal characteristic of having or not having a particular religious belief or of having no religious beliefs.
8.7 It is clear from the wording of Section (3)(2) that in order for a discriminatory ground to exist in relation to ‘religion’ a complainant must be the subject of less favourable treatment on the grounds of having different religious beliefs to a comparator or of having or not having any religious beliefs. In the present case according to the definition contained with the Equal Status Acts, the complainant has not grounded her claim on an assertion that she has a different ‘religion’ to others cited as comparators but as a teacher of non-faith based subjects. Thus, a complaint cannot be grounded on the complainant’s status as a ‘teacher of non-faith based subjects’ in comparison to others who “teach faith based subjects “and does not fall under the definition of ‘religion’ under the Acts. Accordingly, I am satisfied that I do not have jurisdiction to examine the complaint on the basis of the complainant allegedly being treated less favourably due to the fact that she ‘does not teach faith based subjects’ and this aspect of the complaint must fail.
Gender ground
9.1 The complainant has taken the claim on grounds of gender and religion. The complainant has stated that her application for promotion was unsuccessful due to her gender. The respondent advised the hearing that the complainant had been ranked 6th place out of 7 applicants following assessment of the application forms.
9.2 The complainant did not make any claim that any aspect of the application process referred to gender. In addition, the respondent advised the hearing that it had not requested any information regarding the gender of applicants.
9.3 In considering this submission I am cognisant of the finding of the Labour Court in EDA 0416 Director of Public Prosecutions and Robert Sheehan which found that
“In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground. As was pointed out by Neill LJ inKing v Great Britain China Centre [1992] I.C.R. 516 such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court. “
9.4 In O’Halloran v Galway City Partnership EDA077, (also referenced at pgh above) the Labour Court stated:
“Where a better qualified candidate is passed over in favour of a less qualified candidate an inference of discrimination can arise (see Wallace v. South Eastern Education and Library Board [1980] NI 38 ; [1980] IRLR 193 ). However the qualifications or criteria which is to be expected of candidates is a matter for the employer in every case. Provided the chosen criteria are not indirectly discriminatory on any of the proscribed grounds, it is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise.”
9.5 The Labour Court has held that this general principle is equally applicable where other discriminatory grounds are relied upon. However, in applying that general principle the Court has held that it is for the Complainant to prove as a fact that he or she was better qualified relative to the successful candidates. In addition, the qualifications or criteria which are to be expected of candidates and the evaluation of candidates against those criteria are a matter for the employer in each case.
9.6 The complainant in the present case told the hearing that she was more experienced than two of the successful candidates one of them a male and the other one a female. The complainant in advancing this told the hearing that she had more publications than successful candidates and that she had more peer reviewed publications than one of the successful candidates but that she was unsuccessful due to her gender. In examining this assertion, I must look to the criteria set by the respondent. The respondent advised the hearing that the criteria for assessment and the marking scheme had been decided and issued to all staff in advance of the promotion competition and prior to receipt of applications.
9.7. The respondent in its evidence outlined the categories used for the assessment of candidates and the breakdown of marks awarded for each category and the scores awarded. The respondent advised the hearing that one of the successful candidates was a female. It emerged at the hearing that two of the applicants were female and one of those was successful thus half of those females who applied were successful. It also emerged at the hearing that it was the successful female candidate who scored most highly overall in the competition and who was ranked first.
9.8 The respondent advised the hearing that the most successful candidate i.e. the person who was ranked first was female and of the same gender as the complainant. The respondent advised the hearing that the complainant was unsuccessful as she had not scored as highly as other successful candidates. The respondent at the hearing referred to the interview notes and scores awarded to the complainant at the interview. The respondent advised the hearing that the complainant did not avail of the offer of feedback following the competition. The respondent stated that unsuccessful candidates were offered the opportunity to take part in a peer review of their applications to enhance and support continuing professional development. The respondent stated that all unsuccessful candidates apart from the complainant availed of this opportunity. The complainant did not dispute this.
9.9 In examining the breakdown of successful candidates provided by the respondent it is clear that 7 candidates applied, from which 4 were successful. In looking at the claim on the ground of gender it is clear that of the two females who applied one was successful and one, the complainant was unsuccessful, thus half of all female applicants were successful.
9.10 The complainant in the present case has submitted that she has more experience than the successful candidates but repeatedly referred to the fact that she was unsuccessful due to the fact that she did not teach ‘a faith based subject’ and thus her class size and number of students was not as great as those in faith based subjects.
9.11 Having considered the submissions made and the totality of the evidence adduced in relation to these matters I am not satisfied that facts have been established of sufficient significance to raise an inference of discrimination on the ground of gender. The Complainant submitted that the reason she was not successful in the promotion competition was due to her gender and religion but has not adduced evidence to substantiate this claim. In addition, the fact that one of the successful candidates was of the same gender as the complainant and the fact that the most successful candidate was the same gender as the complainant would support the respondent’s submission that it was not influenced by the candidate’s gender.
9.12 I am satisfied from the totality of the evidence adduced that the Complainant has not demonstrated that she is better qualified or that she met the pre-determined criteria to a greater degree than the successful candidates and hence the I cannot find facts from which it could be possible to raise a presumption that the selection process for promotion to Senior Lecturer, was tainted by discrimination. Thus, I am satisfied from the totality of the evidence adduced in relation to this matter that the complainant’s failure to be selected for promotion was not in any way related to her gender and/or religion.
Decision of the Equality Officer
10.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2015 I issue the following decision. I find that
(i) the respondent did not discriminate against the complainant on grounds of gender, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the competition for promotion to Senior Lecturer in February 2015, and
(ii) the respondent did not discriminate against the complainant on grounds of religion, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the competition for promotion to Senior Lecturer in February 2015.
Orla Jones
Adjudicator/Equality Officer
16th of March, 2018