ADJ-00003593

Complainant

Respondent

Anonymised Parties

Lecturer

University

Representatives

Irish Federation of University Teachers

McCann Fitzgerald Solicitors .

Ms Clare Bruton, BL

Mr Conor Power,BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00005166-001

13/06/2016

The complaint was heard on 3/10/17 and 23/3/18.

The complainant commenced employment as a lecturer in the University in 2003, following on the completion of her PhD. She was appointed to the position of manager of the Centre for Teaching and Learning in 2009 and its director in 2011.

She applied for the position of Dean of Teaching and Learning on 20/ 8/15. She was interviewed on 16 December. On 17 December 2015 she was advised that her application for the post was unsuccessful.

She submitted her complaint to the WRC on 13/6/16 claiming that the decision not to appoint her to the position of Dean of Teaching and Learning, preferring, instead, a less qualified colleague who was 15 years younger, constituted discrimination on the age and gender grounds contrary to the provisions of the Employment Equality Act 1998. Prior to this she made efforts to secure an agreed outcome with the University.

The complainant commenced her employment in the University as a lecturer in Geography in 2003. From 2004 to 2005, the complainant was employed as a temporary part time researcher and junior lecturer in geography and in adult and community education courses. From 2007-10 she continued to lecture in the Department of Geography.

The complainant was promoted to become the first Manager of the Centre for Teaching and Learning, on its establishment in 2009 and in 2011, became its Director. The centre was funded through a stream sourced by herself. Initially the management function absorbed 40 % of her time with the remainder being expended on teaching, coordinating, researching and leading on SIF funded teaching and learning projects.   From 2009 onwards, she was assigned a number of leadership roles in creating, promoting and leading on initiatives to improve teaching and learning in the university. She participated extensively in the policy and decision-making structures within the University. The extensive list of engagements with these structures was submitted in evidence.

In 2011 she was promoted to a senior lectureship on taking on the additional office and role of Head of Academic Advisory (Academic Counsellor), a position previously held by a professor and former registrar.

Academic Qualifications:

Diploma in Montessori Teaching ,1991.

B.A. Sociology and Geography, First Class Hons, (1999), gained as a mature student.

She was awarded a PhD, in 2003.

Academic and research awards:

She secured 4 academic awards between 1999 and 2006, the last being the Irish Research Council Post -Doctoral Scholarship Award.

She received 4 academic research awards between 2007 -14, all of which concerned Teaching and Learning skills projects.

The list of awards conferred on the complainant is a validation of her scholarly and research abilities.

From February 2007 the complainant worked with the deputy president of the University as a coordinator and researcher on the Higher Education Authority (HEA) Strategic Innovation Funds (SIF) 1 and 2, while also lecturing in the geography department. This funding, sourced by the complainant, was the driver for promoting inter and intra institutional collaboration, institutional reforms, enhancement of lifelong learning and enablement of development of 4th level activity. The value of this funding, sourced by the complainant was recognised in a University Institutional Self-Assessment Report of 2009 which observed

“The University sif1 supported initiatives are transforming the practice of teaching across all departments and enhancing student learning leading to an improvement in the retention of students and improved academic performance.”

The complainant was responsible for leading technology integration in the University, including the coordination and development of the University’s virtual learning environment, Moodle, which is used by over 98% of staff and students.

She was responsible for the coordination and development of the Post Graduate Diploma in Higher Education (PGDHE) a programme for academics designed to help develop their professional knowledge, understanding and skills surrounding student learning and effective teaching practice funded through SIF 1 and 2.

And the coordination and development of the Professional Certificate in Teaching and Learning for tutors and demonstrators.

Her competencies were expressed in a statement dated 30/3/17 by THE Dean of Social Science and member of the selection panel

“She was the founding Director of the Centre for Teaching and Learning, chosen for her background as an adult learner, her accomplishments, both in terms of research and teaching, her ability to work with academics and students from across the university whatever their backgrounds and disciplinary attachments, her dynamism, her intellectual independence and her can do attitude.”

The past President stated

“She Led the university on a major reappraisal on its approach to teaching and learning in the various initiatives she spearheaded. In all this work she came to command a universally high reputation amongst the University’s academic staff and indeed in the wider higher education community” (2017)

Appointment Process.

On 27th July 2015 an” Expression of Interest “invite was circulated to all academic staff in the University by the President, Professor R 1. It was expected that interviews would be completed in early September 2015. The complainant applied for the position on 21st August 2015. She was interviewed on 16th December 2015. On the 17th December, the President rang the complainant to inform her that she was unsuccessful in her application. He advised that she had done an excellent interview, there was no flaw in anything, but that it was a competitive process.

Regarding the merits of the complainant’s candidacy, she had held the posts of Senior Lecturer and Director in the Centre for Teaching and Learning, and since 2011, Academic Counsellor -considered to be a strategically significant post. During this time, she led transformative and systemic change in Teaching and Learning within the University. The complainant’s contribution as Director of the Centre for Teaching and Learning and Academic Counsellor is outstanding yet a more junior and less qualified colleague was successful in the selection process. The successful candidate is 15 years younger, is ranked at the lower academic grade of lecturer, as opposed to the complainant’s higher grade of senior lecturer, does not work in the discipline of Teaching and Learning –the function attaching to the post--but in a completely different discipline and department, Music, is less qualified, and has never been involved in implementing University- wide Teaching and Learning initiatives. Her contributions to scholarly journals were all concerned with Music. The complainant argues that the successful candidate’s experience in the Music Department in the respondent University cannot equate with the complainant’s in the discipline of Teaching and Learning.

The complainant sought feedback from the University and subsequently, when only limited and delayed feedback was given, made a data access request to the University. The University made, what the complainant believes to be, a partial disclosure of information. The complainant’s representative made efforts to resolve the matter and put forward a proposal on 17 May which did not disturb the successful candidate’s selection. The complainant’s representative had understood that the university was in ‘resolution mode’ and was surprised to receive notification that the hearing was to proceed at the WRC.

Age per se is not assessed in the competition but in the context of a relatively small working environment, approximate age would be known. Figures relating to age distribution indicate that the possibility of promotion decreases significantly with age.

The complainant’s qualification and experience related to the post in question are greater than the successful candidate. That is sufficient to discharge the evidential burden of proof.

Procedural flaws and omissions in the selection process.

The selection process differed from that employed for selection all other Dean appointments in that nominations from faculty and/or references were not sought in the appointment process for the Dean of Teaching and Learning.

The pool of eligible candidates was opened up to include junior lecturers- a departure from the usual minimum standard of eligibility for appointments to position of Faculty Dean which is that of Senior Lecturer. The successful candidate was a grade below, holding the position of Lecturer.

The complainant states that the 3-month delay in the appointment process allowed the university to have the Critical Skills Programme up and running (operated by the complainant), before the appointment to Dean would be made.

Criteria.

The final criteria used to select at interview were (1) ‘leadership and management experience and

capabilities’, (ii)’ capacity to contribute to the strategic and management work of the university

executive,’ and (iii)’ strategic vision for the role’.   A combination of elements went into these three criteria. They were not included as criteria in the original letter asking for an expression of interest nor disclosed prior to the interview. Supports for students in Teaching, and Learning and co-curricular activities identified in the ‘expression of interest’ invite were not used as criteria in the selection process.

The criteria capacity to ‘contribute to the University Executive,’ a sub element of criterion(ii), and strategic vison for the role had not been used in previous selection processes for Deans.

Scoring:

No individual scores have been provided, merely a collective mark assembled from the marks of the individual scorers. Throughout the process the complainant ranked ahead on each of the discrete areas in terms of leadership and management experiences and capabilities which are objective criteria, yet the successful candidate ultimately emerged ahead of the complainant due to the marks awarded under 2 criteria which the complainant characterises as subjective.

One of the selection panel advised the complainant that the panel was split on the selection. One of the selection committee members asked that her dissent with the panel’s choice be noted. Her request was not implemented.

Appointable panel.

In a departure from normal practice, a decision was taken not to rank the second placed candidate should the successful candidate decline the post. This despite the fact that the role was a leadership one and the complainant was ranked first in the leadership and management experience and capabilities factor and was ranked second overall.

Complainant contends that this raises a prima facie case of discrimination and so the burden shifts to the respondent.

Composition of selection committee

The composition of the selection committee served to disadvantage the complainant in that there was no Teaching and Learning disciplinary expert on the selection panel. This advantages the successful candidate as neither she nor any other applicant had this experience.

The purpose of having an external expert on the selection committee is to counter any unconscious bias or inadvertent discrimination.

Age profile and promotion.

Five candidates were interviewed for the position of Dean. The complainant was the oldest candidate. The complainant’s representative advised that the probability of promotion decreases with age in the University. The University Executive has 11 members, 4 of whom are female with 3 female deans all in their 40s. The complainant was 55 years of age when she applied for the post. Therefore, the complainant was in the category least likely to be promoted. The complainant’s representative advises that a large number of female academics remain at the lowest permanent lecturer grade into their 50s or until retirement at age 65. The complainant refers to a HEA report which addresses the intersection of age and gender as a detriment to older people.

IFUT requested data by age, grade, gender and faculty in May 2017. Contrary to the University’s assertion to IFUT in May 2017 that they did not have data on staff by grade, age band and faculty, a copy of an email from the university, dated 12 May 2017, was submitted advising the HEA that“We do have current data analysis on staff by age. “

Witness 1. Professor C1.

He is a former President of the University, former Professor of Education, and Dean of Teaching and Learning from 2008 until 2011. He is Chair of two educational institutions, Chair of a national curriculum project 2012-16.

He saw an injustice in the failure of the university to appoint the complainant to the position of Dean.

The development of Teaching and Learning as a discrete university project emanated from student dropout rates and a desire to encourage access. In the witness’s own former department of Adult Education, they were exploring how teaching and learning happens and were anxious to move away from the traditional didactic approach. From 2005, universities were developing Teaching and Learning centres.

In the complainant’s work in the Centre she was co-equal to the Vice – President and one other who he said constituted a triangle of leadership. She took on driving the strategic vison on teaching and learning for the university. She took on an inter-institutional dimension. She effectively led the project. As the complainant exercised her role, she developed it from managing to thought leadership to advocacy. She displayed significant leadership ability. She displayed academic leadership in driving and promoting ideas on teaching and learning through institutional wide and interinstitutional wide channels

On the issue of academic leadership which is her alleged deficit, he questions if this type of leadership is so hermetically sealed as is claimed. The term academic can include practical activities. For example, in the Post – Graduate Diploma in Education, practice is everything; is music an academic function if you are performing, or English if producing or acting in a drama production. The witness could not understand the respondent’s concept of academic leadership nor the basis for attributing a strong academic vison to the successful candidate. He could understand if they were talking about subject leadership for example a professor in Geography.

Head of a department, a role held by the complainant, is a more responsible function than a chair, a role held by the successful candidate. The witness advises that a manager in a university department manages resources, a director is a thought leader who sets the agenda for university- wide projects. The complainant was a strategist who got the cooperation of other academics. A dean sits on the University executive.

He cannot accept that the successful candidate had equivalent leadership experience or responsibilities as the complainant. In terms of the stated academic leadership roles held by the successful candidate or the areas of experience which would assist in academic leadership or in the contested position, the witness does not consider an acting head of Department or a chair of a committee to be an academic role- roles held by the successful candidate. In contrast to the complainant’s experience, the successful appointee had been in his view in an operational routine management position. This was contested by the respondent. A head of department can be selected from any level and Professor C1 does not accept that a lecturer occupies a leadership role.

Chair of faculty subcommittee is not a senior management position.

He considered the complainant’s academic achievements to be remarkable, her scholarships to be remarkable. She completed her Ph D in 3 years.

Criteria for selection.

The witness maintains criteria (ii) and (iii) are subjective and not competency based.

An appointable panel

The former president had sat on many interview boards. It had never happened in his time that the second ranked candidate was not identified. Omitting the candidate’s name on the report of the selection committee means you are not appointable.

In cross examination the respondent’s barrister noted that the University Executive is the senior management team in the college, advising the President. The respondent’s barrister advised that the evaluation of a candidate’s abilities to meet the criteria and how is within the remit of the selection panel.

External Interviewer.

The complainant was disadvantaged by the absence of an external disciplinary expert- unheard of during his presidency- because to his knowledge the successful appointee would not have claimed any expertise in teaching and learning.

Witness 2 Professor C 2

She has been Dean of Social Sciences for past 7 years. She sat on this and many selection committees.

Two issues rose above the rest for this witness. One was the complainant’s strong academic record as a leader. The second was that she had a very good vision of teaching and learning. The witness had made the trip back from the USA to attend the hearing because she had strong views about the complainant’s suitability for the post.

She disagreed with the majority choice of the selection committee. Professor C2 asked for her dissent to be noted and trusted that it would. She therefore signed the score sheet which did not at that stage contain comments.

The complainant in this witness’s view had in effect fulfilled the role of Dean of Teaching and Learning while it had been vacant since 2011 even though she didn’t have the title of Dean.

On being asked about the qualifications of the successful candidate and their connectedness to the functions of Dean of Teaching and Learning, the witness stated that being Head of Department- the post cited as evidence of successful candidate’s academic leadership ability- is more a managerial than a subject leadership position. A faculty sub- committee is just that- a subcommittee. All members of a faculty can sit on a faculty subcommittee; it is done on a voluntary basis. Similarly, sitting on an exams board (as the successful candidate did) is open to all faculty members to volunteer for this.

Professor C2 stated that she was completely unaware that the respondent did not do an appointable list of candidates. She was never advised of any change. This was not the case when she interviewed as Dean of her faculty where first, second, third etc ranked candidates were included on the report form. If your name is not on the form it means that you are not appointable.

External expert on selection committees.

Professor C2 stated that she had sat on many interview boards in many Irish Universities and there had always been an external expert on the selection committee even where there was only one candidate. It is particularly necessary when the disciplinary knowledge is so essential to the post in question. Teaching and Learning is a distinct discipline.

On cross examination the witness advised that this was the first time that she had interviewed for an internal Deanship in the university. She confirmed that no external expert sat on interviews for Head of Department. She confirmed that the Statutes allowed the president to determine the process.

Complainant’s representative summed up saying that

It was inexplicable how a person with no University- wide role, nor involvement in setting up initiatives and pilot schemes, and working at a junior grade could be held to be able to persuade the university- wide community as opposed to the complainant who had such experience and had demonstrated this.

The absence of and external expert left the panel as a group of people who are in a direct reporting relationship to the President who chaired the selection panel.

The complainant in a supplemental submission stated that all appointments of female Deans made by the current president have been women in their 40s.

Authorities.

The complainant addresses the absence of individual scores by reference to Munck V National University of Ireland Maynooth, DEC0-E2005-030, where the equality officer directed the respondent “to ensure that all notes at interview are retained in future and that candidates are marked by each individual assessment board member on the basis of objective criteria agreed before the process commences” .

The complainant cites A teacher v A National School, DEC -E2014-097 where a prima facie case of discrimination on age grounds was established due to the failure of the marks to reflect the significant difference in qualifications and experience in favour of the complainant.

The complainant relies on Meehan and Leitrim Co Council, DEC E2006-014. A prima facie case of discrimination on age grounds was established where there was a significant difference in qualifications and experience in favour of the complainant. The selection committee there had been unable to explain how they concluded that the complainant was weaker on leadership and initiative.

The complainant refers to A Government Department V An employee, DEC -E-2008-004. where the equality officer stated, “in cases involving promotion, a lack of transparency in the selection process combined with an absence of any discernible connection between the assessment of qualifications of candidates and the result of the process can in themselves give rise to such an inference”.

The complainant maintains that there are 2 separate reasons as to why the burden falls to the respondent to rebut.

Procedural flaws in the selection process:

             Lack of transparency in how the criteria for assessment were applied.

             3-month delay in the selection process

             Two of the three criteria were subjective and contrary to the recommendation in Munck

             No individual scores for the interviewers

             Failure to record that the panel was not unanimous in its choice

             Failure to identify second placed candidate on an appointable panel

             Lack of an external disciplinary expert on the panel,

And

The asymmetry between the complainant’s qualification in Teaching and Learning and the successful candidate who does not have a background in the field, nor a background relevant to the position advertised. The failure of the respondent to explain how the complainant with superior qualifications and experience failed to secure the position.

The complainant stated that either or both of these reasons shift the burden to the respondent 5.

The respondent denies that the complainant was discriminated on grounds of age by reason of her non-appointment to the position of Dean of Teaching and Learning. A fair selection process resulted in the appointment of the most suitable candidate.

The complainant has been employed by the respondent in a range of roles since completing her PhD. From 2004 to 2005, the complainant was employed as a temporary part time researcher and junior lecturer. In 2007, the complainant was employed by the respondent in an administrative (non-academic) role administering Social Insurance Fund projects. She was issued with a contract of indefinite duration in 2008 in respect of that role. In 2009, the complainant was appointed as part time Manager of the respondent’s Centre of Teaching and Learning (the “Centre”) and for the period from 2009 to September 2011, the complainant spent 40% of her time managing the Centre, and the remaining 60% of her time was spent coordinating Social Insurance Fund projects (as per her CID). This was an administrative role and the complainant was remunerated by reference to administrative pay-scales. In September 2011, the complainant moved from an administrative to an academic role when she was appointed as Academic Advisor and Director of the Centre.

The Centre is an academic support unit which provides a support function to enhance Teaching and Learning within the University. The Centre is not a wholly academic department, rather, it is a hybrid-type department with a mix of academic and administrative functions dedicated to the enhancement of teaching, education technology and learning support for staff and students.

The respondent has a well-established policy on equality which is in place for all employees or prospective employees and which operated for the Dean of Teaching and Learning application and selection process.

The Dean of Teaching and Learning is a senior academic policy leadership role which had been vacant since 2006/2007. In general, Deans have strong academic backgrounds as they are expected to lead the academic community during their term, and may be asked to make judgements on academic programmes, student discipline, and quality of work. The specific duties assigned to the Dean of Teaching and Learning include the provision of leadership for the respondent in the areas of development of teaching and learning, and supports for students in learning and in co-curricular activities, and responsibility for the Centre and the Respondent’s Academic Advisory, Placement, and Career Development Offices.

The appointment of a Dean is not a promotional competition. The Respondent has six Deans, including 3 Faculty Deans and 3 Non-Faculty Deans. They are temporary secondments to fixed term positions for a 3-5-year term, after which the individual normally returns to their academic role. The selection and appointment process is governed by the procedure for the appointment of “all other staff” set out in the Statutes of the University. It provides that the appointment is by the President, in accordance with such procedures he deemed necessary or appropriate.

The same number of Non- Faculty Deans are in the 40 and below age group as are in the 50+ age group.

This selection board consisted of Professor R1 Chair and President; Professor R2, Vice- President, former Head of the Education Department, former Teaching Development Officer in another University Department; Professor R3, Vice- President; Professor C2 Dean of Social Science and Professor R4, former Chair of enhancing Teaching and Learning Group and published author on the subject. All members of the Selection Panel have received equality training, including unconscious bias training,

The complainant was interviewed on 16 December 2015 and asked to present on “My vision and priorities” over the first year and the first three years as Dean of Teaching and Learning’.

All five candidates were assessed objectively on the basis of the three-objective criteria 1) ‘leadership and management experience and capabilities’, (ii)’ capacity to contribute to the strategic and management work of the university executive,’ and (iii)’ strategic vision for the role’ and were asked to present on the same topic lasting no longer than 15 minutes. At interview, the complainant was found to have a good vision and excellent management skills, though she had not held a leadership position in a wholly academic department. The complainant scored highly in the area of leadership and management experience and capabilities by reason of her having held the position of Academic Advisor and Director of the Centre of Teaching and Learning. The score sheet used at interview records that the Selection Panel considered that ‘academic leadership’ was an issue as compared to the successful candidate. By contrast the successful candidate, who was appointed on the basis of her suitability for the position, scored a higher score in two of the three categories. She was found to have a strong vision, leadership and governance experience and had experience as acting head of an academic department. The successful candidate was found by the selection panel to demonstrate the ability to offer and deliver a strong strategic academic vision for change. The age of candidates is not disclosed during the application and selection process. The evaluation of a candidate’s abilities to meet the criteria and how is within the remit of the selection panel.

The complainant was placed second in the competition. On 17 December 2015, the complainant was contacted by Professor R1 and informed that her application had been unsuccessful. He provided feedback in a letter dated 25 February 2016

“The area of relative weakness was the extent to which you demonstrated to the Selection Panel the ability to offer and deliver a strong strategic academic vision for change through a complex curriculum reform programme across a wide range of disciplines. I stress that this was an area of relative weakness, in that you performed well against this criterion, based on your experience of leading educational innovation. However, in what was a competitive process, other candidates offered a broader and more comprehensive vision for the role of Dean of Teaching and Learning, and evidenced to the Selection Panel that they had the academic leadership vision and skill to achieve institution wide change in academic practice.”

The contention of the complainant that the successful candidate was less qualified and has not been involved in university wide teaching and learning initiatives and is junior to her ignores the totality of the skill set and criteria for the position. The successful candidate, a full-time academic of some standing (and a female, meaning that any contention on behalf of the complainant that her non-appointment was indirectly discriminatory on the gender ground is unstateable), had been acting head of an academic department for a time, and had been an active member of a number of the respondent’s committees involved in designing curriculum changes and experimental learning. The selection panel considered that the successful candidate demonstrated broader and more comprehensive vision for the role and to be more appropriate and suitable for the position, which, it is emphasised, is a temporary fixed term appointment.

The HR director met the complainant and her trade union representative to discuss the competition on 30 March 2016. No internal resolution was reached.

Notes from the complainant’s interview with the selection panel, together with the scoring sheet for all candidates, were provided to the Complainant. The redaction of the names of the other candidates was undertaken in order to respect the data protection rights of the other candidates and is in conformity with section 76(2) of the Employment Equality Acts as it is ‘confidential information’ as defined in that section.

The respondent denies that there were procedural flaws or omissions or delayed feedback during the selection process. Feedback was provided to the complainant within 4 weeks of her request.

Three witnesses, members of the selection panel, gave evidence for the respondent.

All 3 of the respondent’s witnesses affirmed that the president determined the composition of the selection panel in keeping with the University Statutes, proposed criteria on the morning of the interview and that the selection committee accepted the criteria. None of the three witnesses demurred on the accuracy of the comments recorded on the score sheets. All three witnesses accepted that Professor C2 had dissented on the preferred candidate. All three witnesses accepted that the complainant had led University- wide programmes in Teaching and Learning resulting in significant change for the better within the university. All three witnesses stated that selection committees for permanent appointments must have an external expert on the panel whereas no such obligation arises when making temporary, internal appointments.

Witness 1. Professor R2, a member of the selection committee, is a Vice-President of the University, a former Head of the Education Department, and, since 2013, the Academic Registrar. He manages the centre for Teaching and Learning. He is responsible for the academic programmes of the University.

He differentiates between the appointment process used for Faculty and Non- Faculty Deans. Non- Faculty Deans such as the Dean of Teaching and Learning are appointed by the president. A prescribed and different statute governed process is set for the appointment of Faculty Deans.

This Dean is a 3-year, fixed term position. The holder retains some teaching functions. Since 2013 the position carries an extra payment on top of the lecturer’s salary. The Dean is asked to make judgements about students. The Dean is a temporary leadership role intended to set the direction of teaching and learning across the university.

Prior to the appointment of the Dean, Professor R2, had fulfilled part of this role. Some other elements of the Teaching and Learning function were done by Professor R4. The role has expanded since its former occupancy to include experiential learning officer and student engagement advisor.

Ranking of candidates.

This is not so important in internal competitions. All first ranked have accepted the job since 2013. Sometimes an external candidate might decline a position but it is very rare for an internal candidate to do so. Had the preferred candidate declined the offer, the panel would have regrouped and considered the matter. He stated that she was qualified to be appointed

Alleged change in the Criteria

Professor R2 stated that the equivalent of a job specification, contained in the ‘declaration of interest ‘ invite did not disclose the criteria by which candidates would be assessed at interview but served as a guide as to what was required of the post. Normally scoring is done on about 3 criteria at interview and not on multiple points as set out in the job description

He was involved in the appointment of the Dean of International and Graduate Studies in 2013, a non-faculty Deanship. That was the first occasion where no grade level restrictions applied; junior lecturers could apply whereas the respondent held the Senior lecturer threshold for appointment of Faculty Deans. He did select an external expert for that interview as it was his first time interviewing for such a position. Candidates in that competition were ranked in outcome because there was an external person on the selection committee.

The complainant as Director reported to the witness.

To the witness’ knowledge all the respondent’s Dean appointments have been internal as they are temporary positions.

The delay in making the appointment was due to staff shortages.

Expertise in teaching and learning on the selection panel.

This witness advised that contrary to the complainant’s understanding, there was expertise in Teaching and Learning on the panel. For example, he had chaired the curriculum project out of which emerged the proposal for the recreation of a Dean in Teaching and Learning. His entire career had been in teaching and learning.

Professor R4 had been chair of Teaching and Learning working group, was an educational psychologist. Her background in cognitive psychology gave her a good knowledge in Teaching and Learning. As head of a department she gained insights into assessments, students experience, CPD needs of staff.

Criteria

Vision was a very important criterion for the respondent and it was agreed to ask the same questions on this element. The evidence adduced to give the successful candidate greater marks was on capacity to contribute to University Executive (+1) and her vison for the role, (+2), her views around change management, her understanding of the scope of the role, how the university could do better. He accepts evaluating vision is a subjective exercise.

The question of whether “she leads or need to be led “is a legitimate one.

Qualifications.

A table submitted by the respondent was intended to demonstrate that the successful candidate was not less or not dramatically less qualified than the complainant who was clearly qualified but this was a competitive process.

Marking.

After each candidate was interviewed, the panel discussed his / her performance, shared their reactions. The President invited the panel to submit a mark for each of the candidates. They did not compare candidates until all had been interviewed. Discussion lasted 30-40 minutes. It became apparent that there were 2 front runners, the successful appointee and the complainant. Four of the panel favoured one candidate and one favoured the complainant. Panel agreed to go with the majority view.

Each candidate was assigned a mark under each of the three criteria and this was done in chronological order. The scoring was out of 10. The comments are an accurate reflection of the panel’s discussion on the candidates and were inserted after the marks had been agreed.

The witness disagrees with the complainant’s demarcation between objective and subjective criteria as he maintains that all judgements can veer towards subjective as you are assessing the capacity of a candidate to do something as opposed to assessing what has been done in the past. Even for example in assessing contributions to scholarly publications there are variables as the prestige or reputation of the publication in which a candidate’s work might be published is a matter of opinion or judgement.

It was accepted that the complainant had greater line management experience and that she had led her team well. But the successful candidate had been acting head of a mainstream department for a year and because of the moratorium had been unable to apply and be appointed to a senior lecturer’s position. She secured this in 2016. She presented a very impressive exposition of how the role could be exercised

The requirement for individual score sheets.

The respondent distinguished this competition from the one employed in Munck V National University of Ireland Maynooth, DEC0-E2005-030, as that was a recruitment board and the president in a non- statute governed selection process can decide how notes are to be taken. He did not see what could be added or gained by having the scores of individual members of the panel. In response to the stated lack of transparency, he pointed to the complete set of comments submitted by each of the panel members and included on the score sheet. These notes were intended for feedback for candidates. The President is the last to contribute on the scoring of candidates.

Witness 2. Professor R3, Vice President Research and Innovation.

He had been overall chair for the curriculum initiative- the progenitor of the 2014 report which resulted in the examination and review all curricula. He had chaired one of the resultant working group on first year students’ experiences, critical skills training and learning experiences. The complainant made a positive impact on this group. The University thought that they could and wanted to do better in engagement of students in pedagogy and in experiential learning.

At the end of the final interview the selection panel referred to their notes. Two outstanding candidates and 4 meritorious candidates emerged. There wasn’t unanimity so discussion continued for about a further 20 minutes. As consensus proved impossible the panel agreed to go with a majority decision. Professor R3 stated dissent is more common than unanimity but it is the consensus view which is always recorded. The marks were finalised and all members of the panel signed the sheet.

The witness states that academic leadership is different to leading a small group where you have funds to roll out initiatives.

The witness disputes that the criteria were not objective.

Appointable panel.

Had the successful candidate not accepted the post, the complainant would have been appointed. She scored 70% plus. Had she scored below 70%, her appointment would have been in doubt.

External expert.

In response to the suggestion that an external expert would not be in a reporting relationship to the President, and thus freer, the witness asserted his own ability to think and evaluate independently.

As to how he was persuaded of her superior candidacy, he states the successful candidate demonstrated an ability to convince the entire university. This was a Dean’s role which carries a responsibility for a third of the university’s students and staff. She had a vison, ideas about change management, better understanding of the scope of the role, the possibilities, how they could make themselves better.

Upon questioning, he accepted that vison could be seen as a subjective matter. Leadership can be a subjective evaluation. He accepted that the complainant did develop the teaching and learning strategy for 2012

He accepted that the successful candidate’s leadership experience was not as strong as the complainant’s. He did not accept that the complainant’s academic attainments, research experience or teaching were greater than the successful candidate’s. The successful candidate has comparable experience.

The witness states that the Deanship is not a promotion. But he accepted that this appointment would be beneficial for career progression.

Witness 3. Professor R4 states each interviewer made notes about candidates as they went along. Spoke of relative merits of candidates. It was a very difficult decision as they were two excellent candidates. The selection panel arrived at a consensus. She recalls that Professor C2 asked that her dissent be noted but this did not mean that it would be recorded on the form. They were both great interviewees. In the category ‘Vision for Role’ the successful candidate just edged out the complainant.

Age was never discussed.

The respondent denies that any discrimination occurred in the selection. They point to document A which sets out the 4 other appointments to non- faculty Deans for the period 2013-16. Two of the appointees were older than the complainant, one was the same age and one was younger.

In the competition in 2013, there was an external expert, candidates were ranked and a different set of criteria were used to select the candidate. After 2013, candidates for non- faculty deans were not ranked.

LEGAL SUBMISSIONS

Onus of proof

The onus of proof is on the complainant to establish a prima face case of treatment contrary to the Acts. Section 85A of the Acts provides that facts must be “established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him/her …”

The respondent relies on Valpeters v Melbury Developments Limited EDA -0917, a case concerning alleged discrimination on grounds of race, where the Labour Court addressed the probative burden contained in Section 85A of the Acts which a complainant must meet in trying to raise an inference of discrimination. Based on the tenets set out in that determination, the complainant has not established a prima facie case of treatment contrary to the Acts. In particular the Respondent submits that the complainant has adduced absolutely no evidence of any relationship or link between her age and the outcome of the competition for the position of Dean of Teaching and Learning.

It is not the role of the Workplace Relations Commission or the Labour Court to substitute their views on the relative merits of candidates for those of the designated decision makers or to determine who the most meritorious candidate was. This was set out in Moore Walsh v Waterford Institute of Technology Labour Court,EDA 042. The Labour Court held that its role is to ensure that the selection process is not tainted by unlawful discrimination. Consequently, the Court will not normally look behind a decision unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result. In adopting the threshold of manifest irrationality, the Labour Court has placed a high onus on complainants, a threshold which the complainant has failed to meet.

In O'Halloran v Galway City Partnership, EDA077 the Labour Court stated that the qualifications or criteria which are to be expected of candidates are a matter for the employer in every case. It is not for the Court to express a view as to their appropriateness. It is only if the chosen criteria are applied inconsistently as between candidates or an unsuccessful candidate is clearly better qualified against the chosen criteria that an inference of discrimination could arise. The respondent submits that this does not arise on the facts in this case. In addition, the Labour Court in O’Higgins v UCD, EDA 131 which was upheld on appeal by the High Court, reflected previous decisions in setting out the elements of a prima facie case of discrimination.

“It is for the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.

If the complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

It is not necessary to establish that the conclusion of discrimination is the only, or the most likely, explanation, which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts.

In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result.

A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

Where a prima facie case of discrimination is made out and where the respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

The Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

None of the above principles are demonstrated by the Complainant and the onus required of her is a heavy one. In Cooke v UCD DEC-E2010-994, a case which involved a promotion competition, the Equality Officer could find “no convincing evidence that would lead an independent observer to conclude that the complainant was manifestly as qualified as [the successful candidates].”

In the present case, the Complainant was judged and marked in an objective manner on the basis of the three criteria throughout the process from the time of the review of her application form and CV through to interview. The successful candidate was more suited to the position in respect of the post advertised and there was no irrationality in the outcome of the selection process. She provided evidence to the Selection Panel that she had the academic leadership vision and skill to achieve institutional change within an academic practice

No discrimination can be inferred from a simple assertion on her part that the successful candidate was more “junior” than her. In this regard, reliance is placed on the decision of Mancini v University of Dublin DEC-E2011-021 where it was held that “no evidence of age discrimination can be drawn from the allegation that the successful complainant should have, in the complainant’s view, being given lower points than she was or that she herself ought to have received higher marks in some of the categories than what had been awarded.”

In summary, it is submitted that the Complainant’s claim that she was not appointed to the position of Dean of Teaching and Learning as a result of discrimination on grounds of age, is not supported by evidence and should be rejected.

The matter for adjudication is whether or not the respondent discriminated against the complainant, and contrary to Section 6 (1)(f) of the Employment Equality Act, 1998 in failing to appoint her to the Dean of Teaching and Learning in December 2015. The complainant asserts that she was treated less favourably in terms of her conditions of employment, and contrary to Section 8 of the Act which encompasses promotion. She is 15 years older than the successful candidate.

Burden of Proof.

Section 85A of the Acts provides for the allocation of the probative burden in complaints of discrimination. This requires that the complainant must first of all establish the facts which raise an inference of discrimination.

The complainant maintains that there are 2 separate reasons as to why the burden falls to the respondent to rebut the inference of discrimination.

Procedural flaws in the selection process viz:

             Lack of transparency in how the criteria for assessment were applied,

             3-month delay in the selection process,

             Two of the three criteria are subjective and contrary to the recommendation in Munck,

             No individual scores for the interviewers,

             Failure to record that the panel was not unanimous in its choice,

             Failure to identify second placed candidate on an appointable panel,

             Lack of an external disciplinary expert on the panel,

And

The asymmetry between the complainant’s qualification in Teaching and Learning and the successful candidate who does not have a background in the field, nor a background relevant to the position advertised. The failure of the respondent to explain how the complainant with superior qualifications and experience failed to secure the position.

The authorities cited by the respondent in support of their contention that the facts relied upon by the complainant are not of sufficient significance to raise an inference of discrimination and fail to shift the burden are distinguishable from the instant case. In O'Halloran v Galway City Partnership, EDA077, the complainant did not possess the requisite professional qualifications. In Moore Walsh v Waterford Institute of Technology Labour Court, EDA 042, the successful candidate had superior academic qualifications. In Mancini v University of Dublin DEC-E2011-021, where the complainant was ranked 16 and only the first 5 were shortlisted, the totality of the evidence did not support her contention that she was discriminated on age grounds. In Cooke V UCD DEC-E2010-994, the complainant’s failure to secure promotion was attributable to the “lukewarm evaluation of 3 of the four external assessors some of whom were more fulsome in their evaluation of other unsuccessful candidates” All of these complainants had to surmount more significant and obvious obstacles in their efforts to raise an inference of discrimination than the complainant in the instant case. In O’Higgins V UCD 2013, EDA 131, the Labour Court in varying the decision of the Equality Tribunal that the complainant had not made out a prima facie case of discrimination held that

“It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn”. They disallowed the appeal on the basis that the respondent discharged the onus of proving the absence of discrimination. The complainant had failed to meet the prescribed standard in a competition for which there was no limit to the number of appointments which could be made.

The job specification for the Dean’s position required the successful candidate “to provide leadership in the development of Teaching and Learning and

in supports for students in learning and co-curricular activities”.

I find that the greater proximity of the complainant’s qualifications and experience to the job specification of the Dean of Teaching and Learning together with her at least comparable if not superior qualifications cumulatively add up to a significance necessary to meet the inference required of the complainant. I state superior as Professor R2 referred to the successful candidate being as qualified or no less dramatically qualified than the complainant. Therefore, the onus of proving the absence of discrimination shifts to the respondent.

Did the respondent rebut the presumption of discrimination?

The complainant scored a total of 21 marks, one less under ‘capacity to contribute to the strategicand management work of the university executive,’ and 2 less ‘in strategic vision for the role’.The successful candidates scored a total of 23 marks.

I accept that the selection committee can determine its own criteria and this has been accepted in many decisions as long as they are applied consistently, are not tainted by discrimination or are manifestly irrational.

Alleged lack of transparency in how the candidates were assessed under the criteria.

Departing from the criteria identified in the declaration of interest document. I accept that the ‘expression of interest ‘invitation did not specify the criteria by which candidates would be measured. It functioned as a guide to what the respondent was seeking and what the post entailed.

I do not accept the respondent’s contention that a different level of transparency can apply in this instance as they maintain it is not a promotion. I do not accept that it is not a promotional post in the sense that it can carry an extra payment and the respondent did accept that it is undoubtedly a stepping stone in one’s career path or progression.

The score sheet giving the aggregate marks of the 5 interviewers under each of the three criteria was submitted with comments for feedback attached as were the notes of the interviewers. The notes from the selection committee are a record of themes addressed and responses. Insofar as they reveal a commentary, none of the notes of 4 of the 5 interviewers raise any questions about her leadership or any other deficit. One interviewer, the President queried if she, “leads or need to be led”.   Professor R 2 stated that “she had an excellent grasp of what needed to be done”. Professor R4’s comments include “very good presentation, thorough, breadth of issues, very good management experience; honest answer to personal challenges”.

There is a certain opaqueness about the distribution of the marks between each of the 3 criteria, how the particular figures / numbers were arrived at and the scarcity of evidence in connecting the marks to the evidence to hand which is the written and oral testimony of the respondents’ witnesses and the interview records concerning the criteria under which the complainant scored less than the successful candidate. The respondent in the instant case gave sparse evidence as to the complainant’s deficit in academic leadership’ “leads or needs to be led “and gave merely generalisations regarding the relative weakness exhibited by her in the assessment of the criterion ‘capacity to contribute to the University Executive ‘where she scored one mark less than the successful candidate.

The explanations as to how marks were arrived at did not extend beyond generalisations. Professor R3 stated that successful candidate demonstrated a “more developed vison of how the role would be used and how she could contribute to the University Executive”. Evidence from Professor R4 was that the complainant was “just edged out”. In Meehan the equality officer held “The respondent was unable to explain how the interview board had come to the conclusion that the complainant was weaker on leadership and initiative” The EO considered this fatal to the respondent’s defence.

Flaws in the process

Opening up the competition to those below senior lecturer grade contrary to previous practice. The change occurred in September 2013 due to the fact that a moratorium on promotions had been in place since 2009 and had hindered the career paths of staff. I accept the respondent’s explanation that such a move was not tainted with discrimination. In addition, I was not presented with data to show the age disadvantage associated with the inclusion of the grade of junior lecturer.

Absence of an external expert.

I note that the statutes permit this but I also note that this is the first time in which this has occurred in a non-faculty dean’s appointment. I note that subsequent to this appointment an external expert did not serve on selection panels for Non- Faculty Deans.

3-month delay in the selection process.

I accept the respondent’s evidence that they were short staffed. I do not find this to be evidence of discrimination on grounds of age.            

Two of the three criteria are subjective and contrary to the recommendation in Munck.

The criteria ‘vison for the role’ and ‘potential to contribute to the university executive’ are subjective. The transparency associated with the evaluation of these criteria is material to the investigation of the complaint. In Munck, in the circumstances of that case, and in the absence of interview notes it was considered to be one element leading to the conclusion that that complainant had been discriminated against on race grounds. But it is a question of examining the respondent’s evidence on how candidates were assessed under these criteria that is material. I accept that the borders between subjective and objective criteria can be porous

Because the President can choose different processes for non- statute governed processes does not mean that there is an exemption from the obligation to be transparent.

No individual scores for the interviewers.

The accuracy of the total mark under each heading was not questioned by any of the witnesses whatever about its validity. While it is a weakness and is contrary to the recommendations in Munck, I do not find this to be evidence of discrimination on age grounds.

Failure to record that the panel was not unanimous in its choice.

The panel stated that there is no procedure whereby dissent must be recorded. As the respondent’s witnesses confirmed that Prof C2 had dissented, I do not find this omission to be significant.

Failure to identify second placed candidate on an appointable panel.

There was conflicting evidence submitted by the respondent’s witnesses. Prof R2 stated that had the first placed candidate declined the job they would regroup and decide what to do. Prof R32 stated that as she was qualified they would have offered the job to the complainant. They were ranked in Non- Faculty Deanships up to the current competition. The report of the interview had a space for the second and third placed candidate. These spaces were blank. The respondents’ witnesses did state in evidence that the complainant was appointable, but the conflict of evidence – regroup and decide what to do next versus appoint the complainant –when taken with the fact that Professor C2, a member of the selection committee, had never been advised of any departure from the practice of ranking candidates raises questions.

Lack of an external disciplinary expert on the panel.

I accept that there was disciplinary expertise on the panel. The choice to include an external expert lies with the University. Concerning the alleged groupthink of the panel, it was not stated to be a group think focussed on age. I do not find this to be evidence of discrimination on age grounds.

The asymmetry between the complainant’s qualification in Teaching and Learning and the successful candidate who does not have a background in the field, nor a background relevant to the position advertised. The failure of the respondent to explain how the complainant with superior qualifications and experience failed to secure the position.

Academic Qualifications.

I have already decided that the respondent is entitled to choose the criteria for selecting a candidate. They assessed the candidates under the three criteria.

Both the complainant and the successful candidate were qualified to doctoral level. It appears that the complainant was the beneficiary of a greater number of academic awards and research awards/ scholarships dedicated to Teaching and Learning. Those awarded to the successful candidate are concentrated on Music. The successful candidate was conferred with prestigious academic awards in the 1990s. Experience and qualifications are key indicators for selection. The respondent evaluates their compatibility with and value to the demands of the post. Professor R2 stated that the successful candidate was as qualified or not dramatically less qualified; the second witness Professor R2 stated that her qualifications were comparable to those of the successful candidate. It is difficult to ignore this ambiguity. There were no external assessors. None of the respondent’s witnesses stated that the successful candidate’s qualifications were superior to those of the complainant.

The cases cited A Teacher and a National School and Meehan concern decisions where the gap in the qualifications and experience to the advantage of the complainant was undeniable and admitted to being so by some of the respondents’ witnesses. That does not apply in the instant case where two other criteria were applied to the complainant’s candidacy.

Background in the field of Teaching and Learning.

I cannot say that the successful candidate’s background is not relevant to the impugned post but I can conclude that the complainant’s background, qualifications and experience are more proximate than the successful candidates to the work attaching to the Deanship. There is nothing to say that the skills honed by the successful candidate in lecturing, research, scholarly endeavours, curricular and pedagogical projects and publications in Music are not transferable to the position of Dean of Teaching and Learning. The successful candidate’s cv indicates an involvement on committees charged with designing curriculum changes and experimental learning. But it is striking that the complainant’s work was in the exact field of Teaching and Learning. The complainant has extensive experience in the workings of the University, in the committees forming policy in the structures influencing the direction of the University.

The respondent asserts that the evaluation of a candidate’s abilities to meet the criteria and how that is assessed is within the remit of the selection committee. I do not accept that this is an unfettered right, divorced from the evidence and beyond scrutiny.

A table of appointments to Non-Faculty Deanships by age for the period 2013-2016 was submitted. There were only two appointments identified up to the 2015 competition- the subject of this complaint. In 2013 a 58-year-old was appointed and in 2015 a 41-year-old was appointed. The respondent chose not to submit the data on age and grade, possession of which was acknowledged in their email of the 17 May 2017.

The Labour Court in O’Higgins v UCD stated that “where the onus of proof is on the respondent the question the Court must ask itself is whether it is more probable than not that the complainant's gender had nothing to do with her failure to be promoted. If, on the basis of all the evidence, the Court answers this question in the affirmative the respondent will have discharged its burden. If the Court cannot answer that question in the affirmative, or if it concludes the probabilities are equal, the respondent will not have discharged that onus and the complainant must succeed.” Miller v Minister for Pensions [1947] 2 All E.R. 372 at 374 applied.

The respondent’s evidence on the following matters do not allow me to conclude that the respondent has discharged its burden to prove that it is more probable than not that age had nothing to do with the complainant’s failure to be promoted:

a lack of transparency in how the selection panel evaluated under the three criteria;

an absence of an adequate explanation on the failure to rank the complainant as the second placed candidate,

the proximity of the complainant’s qualifications and experience to the substance of the Deanship as compared with the relative remoteness of the successful candidate’s experience from the substance of the post.

Based on the evidence, I find that the respondent did not discharge the burden of proving that it was more probable than not that age had nothing to do with her failure to be promoted. I find that the probabilities are equal. The complainant therefore must succeed.

I find that the respondent did discriminate on the grounds of age contrary to section 6(2)(f) of the Acts. I award the complainant the sum of €35,000 which is equal to 6 months’ salary.

In the interests of ongoing working relationships, I have decided to anonymise the parties.

I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €35,000 as compensation for the distress suffered by virtue of this discriminatory act.

Equally qualified for post. Burden shifts. Absence of transparency.