ADJ-00038081

Worker

Employer

Anonymised Parties

A Lecturer

 A University

Representatives

Cara O' Neill of SITPU

Niamh Ní Cheallaigh of IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000026

31/03/2022

The Worker first began working for the University in 1993 when she worked as a Laboratory Supervisor and Part-Time Student until 1996.  From 1997 until 1999 she began lecturing part-time while studying at the University for her MSc.  Her continuous employment commenced in July 2006 when she was appointed as a Lecturer Below Bar.

In July 2010 the Worker applied for promotion to the position of ‘Lecturer Above Bar’ citing her general experience and scope of duties at the University. At the time she was intending on starting a PhD programme and a number of Lecturers Above Bar at her faculty did not have a PhD so it was not seen by her as an absolute pre-requisite.

The University agreed to the promotion and the Worker was appointed to Lecturer Above Bar but this was subject to the following conditions outlined to the Worker at the time of promotion:

(a) The Worker was required to re-register for her PhD in January 2011.

(b) Any incremental increases in the Complainant’s salary would be subject to her making satisfactory progress with their PhD.

The Worker was appointed to point 2 of the Lecturer Above Bar scale and moved to point 3 the following year. She ultimately did not complete her PhD and remains at point 3 of the scale.  

In 2010 the Worker formally requested consideration for promotion to the position of ‘Lecturer Above Bar’ and provided a detailed outline of her extensive work experience, additional duties that she had consistently undertaken. The Worker had taken on duties more appropriate to a senior role with much greater responsibility and had published. The Worker was also in a position to provide seven separate letters of recommendation from all the relevant senior academics in the field in the University.

The Worker understood that, while possession of a Doctoral Degree might be ideal in the University’s view, it was not the only means by which a candidate might be considered for promotion.  This view was borne out by the fact that a number of colleagues enjoyed the elevated position and enhanced salary which she hoped to secure, but that they had achieved that without having gained a PhD and therefore a precedent had been set in a number of cases, most recently in 2007.

The Worker was successful in securing the promotion in 2010 but was advised that it was linked to her undertaking to gain a Doctoral Degree, as was her intention at that time.  She began work on her PhD, in good faith, and in line with her own stated intentions – but not on the basis that it was the only way to secure the senior post. 

SIPTU referred to the University’s Promotions Policy which specifically refers to ‘…academic and operational excellence.’ The policy refers to an ‘equivalent’ to a Doctoral Degree, although the University appears to be reluctant to define ‘equivalent’

The Worker’s PhD studies were interrupted by a number of factors, including her role as carer for ill family members and her full-time workload.  She did not suspect that the requirement to pause her studies would have a long-term impact on her earnings but was finally forced to raise the matter of salary stagnation in 2015 with the Head of School. She discovered, almost a full year later, that the matter had not been brought to the attention of HR.  It was at that point that the Worker involved SIPTU.

The issue was discussed on a number of occasions but the response from University was that the pay freeze would remain in place until the Worker completed a PhD.  Despite requests for clarification of ‘…Doctoral Degree or…equivalent’ and other ambiguous areas in the policy, no explanation was forthcoming.

Clarification was sought on the status of the Worker’s colleagues who were occupying senior posts, at an enhanced rate of pay, and whether the criteria which had been applied to her in 2010 had been applied consistently to all concerned; again, none was forthcoming.

Having approached all relevant members of the senior team, including HR, and having not yet received a satisfactory response to the questions regarding definition and consistent application of the policy, the Worker revisited the issue in 2021 with SIPTU.

The University did not engage with SIPTU, despite calls, emails and hard copy correspondence. The Worker referred the matter to the WRC following this lack of engagement.

A meeting was held with the University and SIPTU in August 2022. HR undertook to investigate the circumstances surrounding the status of the Worker’s colleagues and it was agreed that the parties would reconvene in September 2022.  However, no further meeting was scheduled, no feedback was ever provided regarding the comparators.  The Worker had stated at the outset of that meeting that she felt aggrieved about the apparent inconsistency in application of the policy but that a reasonable explanation for same might be sufficient to allow her to set aside that aspect of her complaint and focus specifically on her own eligibility. 

The Worker’s position was summarised as:

i)             She had demonstrated ability and a work ethic which far exceeds the role in which she was operating prior to promotion and has maintained impeccable standards throughout her entire period of employment with the University.

ii)            Seven Senior Lecturers had written letters of recommendation, supporting her claim for promotion, referring to her consistent willingness to take on extra work and responsibilities usually associated with more senior roles; one even described how remaining on as Lecturer Below Bar would be ‘anomalous’ in light of her record by comparison with colleagues receiving the higher salary.

iii)           The Worker has been lecturing for 26 years and it is SIPTU’s view that this, together with the evidence of the standards she has maintained and the expectations she has exceeded, should surely qualify as ‘equivalent’ to the additional academic qualification.

iv)           The Worker has enhanced the University’s reputation by having her work published and well received by her peers.

v)            The Worker was aware of a number of precedents, which already existed, and which appeared to confirm that other avenues for progression existed beyond completion of a Doctoral Degree.

vi)           The University never provided evidence of when the policy governing academic promotion changed and therefore the Worker’s likelihood of securing the enhancement changed from being achievable (based on what applied to other staff members) to being beyond her reach.

The University submitted that their Promotion Policy operates as a tool to ensure effective and equitable promotions mechanisms in the University and serves to encourage the development of Academic excellence. The grade Lecturer Above Bar serves as an incentive for academics to constantly strive to improve and drive for continued academic development through the attainment of their PhD.

The University referred to their policy which states:

“Lecturers below bar can apply to be considered for progression to Lecturer above bar on completion of four years service on the understanding that they have successfully completed their one years probation and have been confirmed in post. Possession of a Doctoral Degree or its professional equivalent shall normally be considered an essential requirement”.

The Worker applied to be progressed to Lecturer Above Bar under this same policy on 18 July 2010. In her application she acknowledged that she did not possess a PhD. In this application, the Worker put forth that she felt she met the criteria of “Professional equivalent” to a PhD.

The University asserts that the Worker’s particular situation did not at the time nor does not now meet the requirements of a professional equivalent to a PhD nor is there an example of applying of such a situation in the Faculty.

As a compromise and in the spirit of good faith the Worker was appointed to Lecturer Above Bar in 2010 which was subject to the conditions previously mentioned.

The Worker, to date, has not obtained her PhD and is not currently re-registering for their PhD at this time. As a result, the Worker subsequently remains on point 3 of the Lecturer Above bar pay scale since 19 October 2011 as per the conditions outlined above and agreed to by the Worker.

This appointment was subject to specific conditions outlined in a memo from HR to the

Deputy President:

“1) Applicant re-registers for her PhD in January 2011

2) Achieves satisfactory progress by January 2012 as assessed by senior academics (including supervisor) from the Faculty

3) Incremental progression is limited to the 3rd point of the lecturer above bar scale subject to completion of PhD.”

The above conditions were also clearly outlined to the Worker in the letter of

Offer.

This was an offer the Worker deemed fair at the time, by way of her acceptance of same through the signing of her contract of employment and has since been in receipt of the salary associated with this grade.

The University allowed for this opportunity for

progression to Lecturer Above Bar in recognition that the Worker was to re-register for her PhD and with the understanding that she would successfully defend and obtain her PhD as was clearly outlined upon offer to the Worker.

This opportunity was given in good faith to encourage the Worker and assist her in undertaking her PhD. In the absence of this opportunity, the Worker would have remained on the top point of the salary scale of Lecturer below Bar, which is some €11,500 less. Therefore, the Worker has benefited significantly from this arrangement since 2010.

It is the position of the University that the Worker entered into this contract in the knowledge of the conditions and requirements and therefore she has not been “refused” a salary increase but has in fact enjoyed a benefit other colleagues have not been afforded the opportunity to since.

The University acknowledged that colleagues in times past, had been promoted to “Above the Bar” without the attainment of a PhD and their ability to progress through the Above Bar salary scale was not linked to the attainment of, nor continued satisfactory progress of a PhD.

It is the University’s assertion such an arrangement ceased a number of years prior to the Worker’s appointment to Lecturer Above Bar.

The University also acknowledged this in email correspondence to the Worker’s representative at the time on 4 March 2016.

During local engagement on this matter, the Worker put forth colleagues who from her knowledge had been appointed to “Above the Bar” and were allowed progress through the salary scale to the top point (point 8). The appointments in question occurred between the 1990s to 2000. It is the position of the University that these are not valid comparators due to the passage of time and the fact the University has significantly tightened its’ criteria long before 2010. This is reflected in that there have been no appointments in this Faculty to Lecture Above Bar in the absence of a PhD since the Workers appointment in 2010.

It is the position of the University that the Worker was not refused a pay increase but has in fact benefited financially since her appointment to Lecture Above Bar since 2010.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. 

SIPTU on behalf of the Worker repeatedly asserted that promotion to the Lecturer Above the Bar was possible under the University’s promotion policy. Much of their submissions focused on the failure of the University to engage with them on the substance of this policy and to instead maintain a position that a PhD was a prerequisite to promotion to Lecturer Above the Bar. They argued that this was not historically the case and that the University had repeatedly failed to identify when a change to the policy had occurred. 

The University has explained that the promotions policy regarding moving lecturers to the above the bar pay scale did not change. However its application within the Worker’s faculty had changed. The leadership of that faculty has taken the position that for strategic reasons it will only allow for promotion to lecturer above the bar where the candidate has a PhD, though in the past it had allowed the promotion to happen without a PhD. 

The University has failed to provide a clear point at which that change occurred except to say that it happened sometime before the Worker’s promotion and that she benefitted from a special deviation from the faculty position, which was entirely within her favour. The University accepted that it created an issue when they provided this opportunity to the Worker. 

SIPTU has quite reasonably drawn attention to the lack of engagement by the University and the Worker’s inability challenge the University’s decision through the promotional procedures that now apply. The Worker was able to provide other examples of promotions within her faculty to lecture above bar to candidates without a PhD. The University submits that these were historical and in one more recent case due to special compassionate circumstances. 

I would also accept that the University is entitled to have broad discretion as to how it handles promotions in light of the variety factors and strategic concerns that can arise from faculty to faculty and within each academic bailiwick. 

The University identified a concern in that there is now a cohort of academics in the University who are at the top of Lecturer Below Bar salary scale and do not have a PhD and a recommendation in this case might create some sort of precedent in them seeking to progress to the Lecturer Above Bar Salary scale. While the presentation of the lecturer salary scales is somewhat unusual and the position of the “bar” can create the impression of a large single scale, the progression from Below Bar to Above Bar is clearly a promotional decision and within the gift of the University.  Lecturers Below the Bar essentially occupy a different grade to the Worker and as outlined above the University has broad discretion in how it applies its progression policy in light of its evolving strategic aims and interests. 

In my view the promotional policy itself is not at issue. It is accepted that the University granted the promotion. The Worker is indisputably a Lecturer Above the Bar. The issue to consider is whether, having granted this promotion, the University was entitled to freeze the Worker at a specific and somewhat arbitrary point on the salary scale. 

It is accepted that the Lecture Above the Bar grade is subject to a sector wide sector pay scale applied across all Universities. This scale is negotiated by the public sector Unions and Government. The University has provided no clear basis for their authority to essentially create a standalone salary for the Worker because she is a Lecturer Above Bar without a PhD. The only real basis the University has put forward is that the Worker agreed to the conditions laid down by them by taking up the post. I do not accept this logic, the bargaining power between the parties in unequal and the Worker would of course take a promotion whatever additional criteria the University chose to lay down at the time of promotion. I am concerned that allowing a public sector employer the discretion to establish their own additional criteria for incremental pay scale progression based on their own preferences, in absence of a policy or circular granting them the power to this this, would be undermining of the established public sector collective bargaining processes. 

IBEC reiterated on a number of occasions the benefit shown to the Worker by the University’s derogation from its own promotions criteria. It is clear that the Worker was expected to attain a PhD and in not doing so contributed to the present anomaly. 

Having concern to this case in its entirety and in particular to the importance of transparent and consistent salary scales to public sector industrial relations, I conclude that the requirement for the Worker to gain a PhD in order to progress past point 3 of the Lecturer Above Bar scale should be set aside. 

I conclude that the Worker should be immediately placed at the point of the Lecturer Above Bar salary scale commensurate with her service at that grade. For the avoidance of any doubt I do not think that the Worker’s incremental progression should be restarted now from point 3 but that she should move immediately to the point of the scale that she would have been entitled to if her incremental progress was allowed as normal, that is recognising her approximately 12 years service at the grade. 

In recognition of the Worker’s own hand in this matter and benefit shown to her by the University in granting the promotion in the first place I conclude that she should have no entitlement to back pay. 

I note the difficulties the Worker has experienced in dealing with the limited and infrequent responses from her employer on this issue. It is clear from the submissions, the information that only came to light at the hearing and indeed the University HR officials attending the hearing that the University HR Department has taken a somewhat adversarial approach to this matter. I do not think this was appropriate, the Worker is a committed member of staff advancing an entirely reasonable grievance related to an anomaly which was fundamentally of the University’s creation. 

For the avoidance of any doubt this recommendation only concerns the entitlement of a public sector worker to the full benefit of their existing pay scale and to proper engagement from their employer. I reiterate my view that the University is entitled to a wide degree discretion in how it applies its own promotions policy, including requiring candidates for promotion to Lecture Above Bar have whatever qualifications the relevant University faculty deem necessary at the time. I do not accept that having granted the promotion the University had any right to limit incremental progression with additional criteria. 

Incremental Progression, Lecturer Above Bar, Employee Engagement