Complainant

Respondent

Parties

Laura O'Connor

National University of Ireland, Galway

Representatives

SIPTU

Ronan Daly Jermyn

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-00013866-001

12/09/2017

Ms. O’Connor (hereinafter referred to as the complainant) applied for a supervisor role but claims that the National University of Ireland Galway (hereinafter referred to as the respondent) refused to consider her application and indirectly discriminated against her on the gender grounds.

The complainant is employed as a gardener and horticulturist.   A role of supervisor was advertised (Position 1) which stated that there was a requirement for a FETAC level 7.   The complainant applied but was informed that she was not shortlisted as she did not have the relevant level 7 qualification. She does hold a level 9 qualification in a different field of expertise but did not dispute that the level 7 qualification required had to be in a relevant area to the work that she performs.

In May 2017 two supervisor roles in different areas (Position 2 and Position 3) were advertised. These were roles equivalent in grade to that of Position 1 but the requirement for these roles were level 5 or level 6 qualification.

It was detailed that all general operative staff working within the area of Position 2 and Position 3 were male and therefore there was indirect discrimination by the requirement for her to have a level 7 qualification in the area where she worked. She detailed that she was the only internal female candidate to apply for the Position 1 supervisory role.

It was put forward that the “apparently neutral provision” for the role she applied, for namely the requirement for a level 7 qualification, put women at a disadvantage compared with other employees and that this is not objectively justified by a legitimate aim.

On 10th August 2017 the complainant received an email from the equality manager Ms. A which stated that it was the industry norm to request a level 7 qualification which was denied by the complainant. The complainant detailed that she has a level 6 qualification in the area that she is engaged in and is currently studying for a Master’s degree at level 9.

In cross examination the complainant accepted that her qualification under the QQI was a level 5 qualification and not a level 6.

The complainant is an employee since 3rd March 2008 and it was reiterated on a number of occasions, by the respondent, that she is a valued employee of the respondent.

It was outlined that Quality and Qualifications Ireland (QQI) is the independent state agency with responsibility for the system of levels of qualifications and educational awards. In the related field to the role she applied for, the Complainant has a UK qualification which is defined as a Level 5 within the National Framework of Qualifications. Therefore, the complainant did not have the required qualification for the role that she applied for and her rejection for this role was completely unrelated to her gender.

Internally, there were 3 males and 1 female (the complainant) who applied for Position 1. None of the 4 met the shortlisting criteria. She, therefore, was not treated any less favourably than those men who applied for the role, as all were assessed on the very same assessment of their qualification and experience.

Position 1 was advertised externally with 39 males and 5 females applying and with the same shortlisting criteria applied, 7 were shortlisted of which 5 were male and 2 were female. 3 were deemed suitable and the first ranked candidate was a female.   Due to the national general moratorium which was introduced around this time, the post was not filled at that stage. Aspects of the role was undertaken by a charge hand (male) and when the recruitment moratorium loosened a Facilities Services Supervisor role was advertised which the complainant did not apply for. Details were given of the nature and complexity of the role.

With regard to comparators it was pointed out the complainant is required to point towards comparators who perform “like work” and that the complainant picked two specific supervisor roles which operate within the Level 5/6 educational requirements for very specific reasons. None of the duties performed by those at Position 2 and/or Position 3 are similar to Position 1 and indeed an employee with a Level 7 qualification for Position 2 and Position 3 might be deemed unsuitable owing to the specific nature of the craft work that is involved. It is generally a requirement that those applying for the supervisor Grade hold a level 7 qualification but that there are some exceptions for the reasons detailed.

The complainant details that she applied for a promotion to the position of supervisor (Position 1) within her area but was not shortlisted because she did not have the required level 7 qualification and she believes that it was because she was a female there was a requirement for a Level 7 qualification and that she was indirectly discriminated against. She details that in another area of the campus there were two supervisor roles advertised (Position 2 and Position 3) that only required a Level 5 or 6 and that the category of workers in these areas are all male.

Section 85A of the Employment Equality Act sets out the burden of proof that applies to complaints of discrimination. In the first instance, it requires the Complainant to establish facts upon which they can rely in asserting that they were discriminated against. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Addressing the issue of the burden of proof in EDA0917 [2010] 21 E.L.R, Arturs Valpeters v Melbury Developments Ltd, the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, held as follows:-

"Section 85A of the Acts 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.”

The Employment Equality Act defines indirect discrimination as

“(1) (a) …where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

(1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1)applies in relation to A or B.”

During the hearing complainant accepted that she had a level 5 qualification and not a level 6 qualification which she had thought.   I fully accept based on her evidence that this was a genuine mistake on her behalf and I note that she is currently studying for a level 9 qualification in the subject area that she is working in.

It is noted that 3 males also applied for Position 1 and none of those males were shortlisted and that the first placed external candidate for the role was a female. While there were 2 other positions at the same grade which sought lower qualifications, the respondent outlines that these are exceptions and outlined the justification for same including that the complainant cannot state that they are “like work” as the roles are very different.

“Like work” is defined under section 7(1) of the act and details that

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

( a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

( b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

( c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1) as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

(3) In any case where—

( a) the remuneration received by one person (“the primary worker”) is less than the remuneration received by another (“the comparator”), and

( b) the work performed by the primary worker is greater in value than the work performed by the comparator, having regard to the matters mentioned in subsection (1)(c),

then, for the purposes of subsection (1)(c), the work performed by the primary worker shall be regarded as equal in value to the work performed by the comparator

It is noteworthy that that the complainant did not apply for the craft worker supervisory roles (Position 2 and Position 3) and has no expertise or qualification in these specific areas.   Indeed, it is noteworthy that somebody with a level 7 qualification working in the area of Position 2 and Position 3 may be deemed unsuitable for the role as they may not necessarily be a “qualified” craft worker. Thus a ‘higher’ level of a qualification does not always determine suitability for the role even where the area of work is similar. This was accepted by the complainant with regards to her own Level 9 qualification which is unrelated to her current role. It is reasonable to assume Position 2 and Position 3 are not “like work” to that which she performs.

The complainant applied for Position 1 as did some of her male colleagues and none of them were shortlisted as they did not meet the shortlisting criteria. Even when the post was advertised externally it is noteworthy that while a larger percentage of males applied for Position 1 (39 males and 5 females) and those shortlisted were again more male than female (5 males and 2 females), the first ranked candidate was female.

Indirect discrimination requires a complainant to demonstrate that an apparently neutral provision places them at a particular disadvantage to others. They must show that the provision has a detrimental effect on them on the ground advanced. There is no evidence to suggest that the complainant was treated any less favourably during this process.

The complainant has not established a prima facia case of discrimination.

The complainant has not established a prime facie case of discrimination. The claim for discrimination has not succeeded.

Equality, gender, indirect discrimination.