Complainant

Respondent

Parties

Paul  O'Sullivan

Munster Technological University Kerry (amended at the hearing)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Séamus Given, Arthur Cox

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-00054117-001

12/12/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant was self-represented and swore an Affirmation at the outset of the hearing.

The Respondent present the evidence of three witnesses who all swore an Affirmation: Professor Joseph Walsh, Head of the School of STEM, Dr Eilish Broderick, Head of Department of Biological & Pharmaceutical Science and Siobhan Garvey, Head of HR.

The Complainant and Respondent filed submissions in advance of the hearing. There was no direction allowing for further evidence or submissions to be present post hearing and therefore, were not taken into consideration in this decision.

The name of the Respondent was corrected at the outset of the hearing.

It was agreed that the fact the role in which the Complainant applied for and was interviewed for was an Assistant Lecturer in Pharmacy with the Department of Biological and Pharmaceutical Sciences which is a Department in the School of Science, Technology, Engineering and Maths (STEM) at the Kerry Campus of Munster Technological University (MTU). It was also undisputed that the Complainant was ultimately unsuccessful.

Both parties were given a full opportunity to present their evidence and cross examine the opposing witnesses over the course of the day long hearing.

The following is a summary of the relevant facts to the Complainant’s complaint of discrimination on the grounds of age and gender in his application for a position with the Respondent with a date of discrimination of 5 July 2022. The Complaint Form was received by the Workplace Relations Commission on 12 December 2022. During the evidence from both parties, it transpired that the interview was rescheduled and took place on 22 June 2022.

The Complainant gave evidence that he applied for the post of Assistant Lecturer in Pharmacy at MTU Kerry Campus. An interview was scheduled for 22 June 2022 via Zoom.

During the course of the interview, the Complainant gave evidence that when he changed the view of the screen on Zoom , there were two people looking at him and when they saw him, one quickly moved off screen. The Complainant questioned why another person who was not part of the interview panel but was present during his interview.

The Complainant submitted that there was a specific type of person employed by the Respondent and identified two Pharmacists who were employed by MTU and worked in a particular Pharmacy. He referred to a breakdown of age of the staff provided by the Respondent.

It was submitted the interview panel was flawed as the external member was an ex-Board member. The Complainant stated in his evidence that “in his view the interview process was a rubber-stamping exercise” as the successful candidate had already been chosen.

The Complainant was invited to go through his submission in advance of the cross -examination to which he responded that he “would prefer the Respondent to do that” and was happy for the Respondent’s representative to begin his questioning.

Under cross examination the Complainant was asked about each of the competencies of the position. The Complainant’s job application form was opened by the Respondent with the Complainant confirming the details included. Ms A, a woman, was the successful candidate for the position. Her qualifications and interview scores were put to the Complainant and compared to his. It was accepted that Ms A had a first-class master’s degree and was undergoing a PhD, thereby, receiving a higher score. The Complainant did not accept that the score given for her experience.  It was put to the Complainant that the most recent CPD undertaken was in 1998 as stated in his application. The remainder of the skills were put to the Complainant who had “no particular issue” with the score applied.

As regards the complaint of an external party at the interview, the Complainant agreed that he did the interview on his iPad in a luggage hold area off the main lobby of his hotel while on holiday in Italy. Asked why he did not seek to postpone the interview when he had checked out of the hotel, the Complainant replied the Respondent knew he was on holidays, and they did not offer to reschedule. It was put to the Complainant that it will be the Respondent’s case there was noise and interference in the background. He replied that the Wi-Fi was excellent and denied any background noise.

It was the Complainant’s evidence that there was someone with Dr Broderick in her own while she was undertaking the interview. It was put to him that this would be denied in the Respondent’s evidence.

It was put to the Complainant that he offers locum services similar to some of the current staff in the Department which is quite common due to the part time nature of the lectures. This was not disputed but the Complainant did note that 2 of the 4 lecturers work for the same retail Pharmacist. It was put to the Complainant that he was wrong about the relationship between the Respondent and a local pharmacy business, and it has nothing to do with this case, the Complainant disagreed. 

The Complainant summed up his complaint by submitting that 80% of the jobs with the Respondent were for under 30-year-olds. He submitted the successful candidate did not have the required three years’ experience.

Professor Walsh gave evidence as a member of the interview panel and Head of School of STEM at MTU. He detailed each step in the recruitment process and opened the Respondent’s Selection and Recruitment Policy . Prof Walsh compared the Complainant’s interview scores with Ms A noting it was a difficult interview, but the Complainant did well.

Professor Walsh was asked about the Zoom interview; to which he replied he was in the office during the interview and as the Chair he was in control of the screen and had hosting access. Professor Walsh explained the usual format would be for the candidate to share their screen to allow for them to make their presentation. However, in the Complainant’ case he was unable to do so, and it was Professor Walsh who shared the presentation and moved through it as the Complainant spoke to it.

Professor Walsh was asked if there was an unknown person present, to which he replied, “absolutely not”.

Asked about the allegation that an individual who works in a Pharmacy in Tralee is the one who controls the recruitment process he again replied, “absolutely not”.

In response to the complaint made by the Complainant, Professor Walsh was asked if he was not selected because he was a man, he replied, “absolutely not, it was purely on the basis of the scores in line with the policy and there were no other factors”. Professor Walsh was asked if there was a reason to choose a younger person vs an older person or man vs woman? Professor Walsh replied, “absolutely not”.

Under cross examination the Complainant asked Professor Walsh about the experience of the successful candidate to which he replied, that if she “did not have the appropriate degree or experience she should not have been screened in”. Professor Walsh acknowledged that recognition was given to the successful candidate who was undertaking a PhD but accepted it was not complete. Professor Walsh was asked about the weighing of publications, teaching and industry experience and supervising experience.  It was put to Professor Walsh that the successful candidate did not have the relevant qualifications, to which he denied.

The Professor was asked if he would agree the Respondent are bias against males based on the figures of male applicants who were screened out. In reply, Professor Walsh explained that the screening processing is based on qualifications and experience not on gender.

Asked about the Zoom call set up, Professor Walsh explained that HR undertook the scheduling and the Chair, himself, was the host of the interview call. The Professor explained that he was the one who shared the Complainant’s presentation which was not the usual format.

Professor Walsh was asked, in re-examination, to confirm that the Complainant was screened in, and he confirmed this was correct.

Dr Eilish Broderick gave evidence as a member of the interview panel on the 22 June 2022. She explained that confidentiality is taken very seriously, and it was her evidence that “under no circumstances was anyone in the room with me” at the time of the interview.

She denied a connection between the Respondent and one particular local Pharmacy, or it has any influence on the Respondent’s recruitment. She explained that the Respondent does interact with all Pharmacies for the purpose of placing students during their first- and second-year placement.

Asked about the successful candidate , Dr Broderick stated she scored higher with, neither age nor gender, been taken into account at any point in the process.

Under cross examination, Dr Broderick was asked about the successful candidates post graduate experience. Dr Broderick confirmed the candidate did have the required experience.

Dr Broderick was asked about CPD and was she aware that in order to remain as a registered Pharmacist, CPD was an ongoing requirement. She confirmed she did, but the only CPD noted by the Complainant on the application form and at the interview was dated in 1998. She continued if the interview panel were not made aware they could not award marks.

The Head of HR, Ms Siobhan Garvey, gave evidence on the breakdown of male and female together with age of employees at the Respondent based on figures presented in evidence. In relation to the 2022 interview in question, three females and one male (the Complainant) applied with two females screened out and two candidates, one male, the Complainant and one female invite for interview.

As regards age, Ms Garvey explained the position of Assistant Lecturer is considered an entry level position with a salary of €42,000 to €57,000 per annum which would be lower than the salary for a retail / commercial Pharmacist. Therefore, such a position usually attracts younger, less experienced candidates. Referring to the advertisement , Ms Garvey noted that applicants required 3 years’ experience, so it is usually newly qualified applicants.

Ms Garvey opened the correspondence between herself and the Complainant where he sought interview feedback on 5 July 2022. By emailed dated 4 August 2022, Ms Garvey offered the Complainant the right of appeal including the relevant form. It was her evidence; no appeal was lodged by the Complainant. Following a request for information from the Complainant, the Respondent replied to him with a breakdown of the male vs female ratio and age ratios of staff by letter dated 18 August 2022.

 Ms Garvey was asked whether the Respondent would accommodate candidates who were away. She explained that the Complainant advised he was on holiday in Sardinia at the date of the interview and he would be checking out of the hotel but would be available for interview. She explained that the Respondent would reschedule interviews subject to the availability of the panel.

Ms Garvey gave evidence of the process undertaken by HR prior to the candidate’s application being sent to Professor Walsh and Dr Broderick.

Upon cross examination, Ms Garvey was asked why there was no breakdown of the applicant’s age to which she replied that the Respondent does not ask applicant’s for their age and the interview panel does not have any information on age.

It was submitted by the Respondent in response to the reference by the Complainant to the successful applicant, that the evidence was both candidates were qualified to be invited for interview. The screening was carried out by Professor Walsh and Dr Broderick. References made by the Complainant to the UCC website, or any other website were not referred to in his evidence with the first mention made at the end of the hearing. The Respondent questioned the Complainant’s  evidence of who he has identified as the successful candidate as it has never been produced. It was submitted the Respondent has furnished all evidence in advance of the hearing. It was further submitted that the Complainant was attempting to turn this hearing into a judicial review of the recruitment process. The evidence of Professor Walsh and Dr Broderick was uncontradicted. It was the Respondent’s case the successful applicant was qualified.

In conclusion, the Respondent submitted that it is for the Complainant to first establish a prima facie case of discrimination . This case is one of mere speculation and assertions. The presence of a third party at the interview was refuted by both witnesses. The Complainant stated that “potentially the successful candidate does not have the relevant three years’ experience” and the evidence of Professor Walsh was that she did. The Complainant had the interview marking scheme prior to the interview taking place. He accepted Ms A should have been awarded higher marks for her qualifications. Ms A was already involved in the world of education and was credited for this. The Complainant did not disclose anything about his CPD after 1998. He was awarded some marks for knowledge and education and teamwork.  It was submitted that no evidence whatsoever on age or gender. The Respondent sought the complaint to the rejected.

The Respondent refer to the cases of Southern Health Board v Mitchell (2001) DEE 011, Minaguchi v Mr Ray Byrne, t/a Wineport Lakeshore Restaurant DEC-E_2002_20, Melbury Developments Ltd v Valpeters EDA0917 and Graham Anthony & Company Limited and Mary Margetts (EDA038).

Section 6 of the Employment Equality Act defines gender and age discrimination as:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),”

Section 7 of the Act sets out the requirement on the Complainant to provide a comparator who carries out “like work” in order to ground a complaint of discrimination. A comparator must be employed by the same employer but need not be employed at the same time. In some instances, a hypothetical comparator may be relied upon to demonstrate how a person is treated less favourably than the Complainant.

Section 8 (1) widens the scope to include not only employees but perspective employees. Section 8 (5) provides:

“(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of , in this case, age and gender before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell (2001) DEE 011:

“(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South-eastern Education and Library Board [1980] NI 38; [1980] IRLR 193 followed”

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on  Mitchell:

“This test requires that facts relied upon by a complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”

It is undisputed that the Complainant was a man than the successful candidate who was a woman.  However, those facts of themselves do not discharge the heavy burden of proof placed on a Complainant to establish a prima facie case of discrimination.

We heard extensive evidence from the Respondent as to the competencies in which the candidates were assessed on which, were furnished to the Complainant prior to the interview. The Respondent’s two witnesses also gave evidence of the scores that each candidate received under each category.

It appears the Complainant’s focus was on the requirement that that the candidates have three years’ experience which he submits the successful candidate did not have. At the end of the hearing the Complainant made loose references to websites but despite being invited by me on three separate occasions during the hearing to present documentary evidence of his claims on the experience level of the successful candidate he was unable to do so. Instead, he referred to publicly available LinkedIn profiles that” anyone could look up.” Saying that even if any such documentary evidence was produced in the absence of the author it is questionable whether it would be admissible. 

The Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 made it very clear that evidence must be given on oath before the Workplace Relations Commission and fair procedures must at all times be observed. It is not enough for a Complainant seeking redress under the Employment Equality legislation to simply make broad sweeping statements with no supporting witness or evidence and expect to discharge the burden of proof.

The WRC specifically writes to parties requesting all submissions which includes documentary evidence the parties wish to rely on at the hearing is submitted in advance of the hearing. This is particularly important where the hearing is held remotely to allow all parties, whether represented or otherwise, time to consider the evidence and take instructions. A fair hearing before the Workplace Relations Commission does allow for trial by ambush by one party.

The Complainant referred to a number of individuals during the course of the hearing, all female and holding Assistant Lecturer positions in MTU Department of Biological and Pharmaceutical Sciences. However, there was no evidence whatsoever that these individuals were candidates in the same recruitment process as the Complainant complains of or that they had any input or influence on the selection of the successful candidate. There was no evidence presented by the Complainant as to how these  individuals are in any way relevant to his complaints of discrimination.

Having considered the evidence before me, I find the Complainant has not established a prima facie case of gender discrimination by the Respondent.

The complaint of discrimination on the grounds of age by the Complainant was unsubstantiated. The Complainant did not provide evidence of his own age or that of the successful candidate nor did make any allegation that it was raised during the selection and recruitment process. I find there was no evidence before me from the Complainant to establish a prima facie case of discrimination on the grounds of age.

Based on the evidence before me I do not find that the allegation that there was a third party in the room with Dr Broderick is connected to the Complainant’s discrimination on the grounds of gender and age in any way. Neither was there any evidence presented against the external interview panel member that related to the Complainant’s complaints.

Similar to the decision in Mitchell, I find that the Complainant did not demonstrate that he had superior qualifications and experience than the successful candidate. Consequently I find he was not discriminated again on the grounds of age or gender.

I find the Complainant was not discriminated against on the grounds of age or gender by the Respondent.

Employment Equality – Interview – Selection and Recruitment – Age - Gender