Complainant

Respondent

Parties

Sandra  Aungier

University College Dublin

Representatives

Daniel Fennelly, B.L. instructed by John Dunne, McInnes Dunne Murphy LLP Solicitors

Cian Beecher,  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-00055947-001

06/04/2023

The complainant commenced employment on a permanent part-time basis as a Special Lecturer/Tutor with the respondent on 01/09/2017.  She works 14.10 hours per week.  The complainant submits that she was told in October 2022 that she could never be promoted as she had reached pensionable age.  The complainant submits that this constituted discrimination on the age ground.  It is the respondent’s position that the complaint is not well founded and submits that the complainant’s version of what occurred in October 2022 is incorrect.

The complainant is a qualified veterinary surgeon and has worked for the respondent since 01/09/2017.  The complainant’s contract of employment entitles her to work until she reaches the age of 70.  The complainant is part of a team in the School of Veterinary Medicine and there are five veterinary surgeons, and four veterinary nurses. All of these are younger than the complainant.   All the veterinary surgeons are Assistant Professors with the exception of the complainant.  Two of the veterinary nurses also hold the position of Assistant Professor.  The complainant possesses superior qualifications and experience to both her veterinary surgeon and veterinary nursing colleagues.

The complainant gave evidence of her age, qualifications and experience.  She commenced working for the respondent on 01/09/2017.  She stated that she was assured by the then Associate Dean for Teaching and Learning that there would be additional work available and there would be an Assistant Professorship available.

The complainant also gave evidence that she took on other roles such as Assistant Professor of Veterinary Nursing to cover maternity leave.  In October 2020 the complainant applied for an Assistant Professor position as she had previously acted in this role and met all the mandatory requirements.  She was advised in January 2021 by the Programme Director that her application was unsuccessful.  It was explained to the complainant that the School had adopted a recommendation from the ACOVENE Accreditation Committee, which was issued initially in September 2019, that veterinary nursing students should be taught by veterinary nurses.  This was the first occasion that the complainant was made aware of this policy and the wording of the advertisement did not state that applicants had to be veterinary nurses.  In view of what the complainant subsequently became aware of in October 2022 she now believes that this was a misrepresentation and the real reason she did not get the post was because of her age.

The complainant gave evidence in relation to a meeting she attended on 20/10/2022.  The meeting was attended by Professor Michael Doherty, Dean and Dr Robin Farrell. The complainant had requested this meeting in order to see what her options were in relation to Assistant Professor roles. The complainant’s evidence was that the meeting lasted 30 minutes.  She was asked about the notes of the meeting she made, and she confirmed that these were contemporaneous notes which she did not share with any of the other attendees.  It was put to the complainant that the other attendees at the meeting would state in evidence that most of the twelve points she made were never discussed at the meeting.   The complainant stated that she believed that these things were said and in particular that HR had confirmed that she could not be given an Assistant Professor position as she had reached pensionable age.  The complainant stated that she informed the Dean that despite her age her contract of employment provides for her to work until she is 70 years of age.  The complainant also gave evidence that she could not apply for any of the three “Ad Astra” posts as these are for a five-year term and the complainant does not have five years’ service left.

The complainant was asked if she had any further interaction with Professor Doherty or Dr Farrell and she stated that she left the meeting with Dr Farrell.  Dr Farrell told her that the majority of staff in the school were 45 years of age.  The complainant did not know why this was said.

The complainant was asked if she was denied feedback from the interview she attended for the post of Assistant Professor.  She gave evidence that she waited from December 2020 until April 2021 to get this and she had an e amil thread to confirm this.  The complainant stated that she simply wanted to know why she was graded as A3 or A4 in the different areas.

The complainant was asked about a letter from the respondent’s solicitors which stated that there were two ways she could be promoted to any academic position.  The complainant stated that the option under the Faculty Promotion Policy did not apply to her as she is not classed as an “academic”.  She is classed as an “other academic”.  The complainant gave evidence that there was no possibility that she could be promoted under the provisions of this policy.

The complainant did not have any understanding why the notion of age was mentioned at her meeting.  She stated that there was no reference in the policy to this either.

The complainant was cross examined by Mr Cian Beecher on behalf of the respondent.  The complainant confirmed that she had a good relationship with Dr Farrell.  She also confirmed that she held other posts for specific purposes. The complainant was asked about the interview process for the post of Assistant Professor.  She confirmed that Dr Farrell was on the interview panel along with a number of external people.  She confirmed that this role involved teaching veterinary nurses and she has been doing this since 2010.  The complainant was asked if she was an “Academic” and she stated that she was not.  Her background was that she had her own veterinary hospital and employed veterinary surgeons and veterinary nurses.   It was put to the complainant that there was a requirement for recent clinical practice.  The complainant stated that she was experienced and was graded by the Veterinary Council of Ireland.  The complainant also gave evidence that she was not asked any inappropriate questions during the interview.

It was put to the complainant that Professor Doherty will give evidence that age was not mentioned at the meeting in October 2020.    The complainant stated that the Dean said that he was on to HR and was told that her age was a factor.  It was put to the complainant that Professor Doherty and Dr Farrell will both give evidence that her account of the meeting is inaccurate.  The complainant stated that she made those notes after the meeting, and these are her own personal notes of the meeting.

It was put to the complainant that Professor Doherty will state that he did not have the budget or headcount to create an Assistant Professor role.  The complainant stated that this was not said but Professor Doherty did mention the “Ad Astra” positions, but they were aware that she did not have 5 years’ service left.

It was also put to the complainant that when the meeting ended, she left with Dr Farrell.  The only context of where age was mentioned was in relation to the Faculty Promotion Policy and Dr Farrell advised her to be aware of this.  The complainant queried why it was necessary to mention age at all. 

It was put to the complainant that the ACOVENE recommendation and the Job Description were not updated until 2021 and that no decision was made to adopt this recommendation until 2021.  The complainant stated that the conversation took place in 2022.  The complainant was asked if she checks the respondent’s job advertisement, and she stated that the does so intermittently, but she feels that she can’t apply for jobs as she is too old.

On redirection the complainant was asked if anyone recommended that she apply for the post that was advertised in July 2023.  She stated that she did not, and it would have suited her as it was for three years duration.  She only became aware of this after the closing date on 25th August.

The respondent confirms that the complainant is employed as a Special Lecturer/Tutor in the School of Veterinary Medicine since July 2017.

The respondent advertised a vacancy for a post of Assistant Professor in September 2020 for the specific purpose of covering a career break.  The complainant was one of five applicants and as she did not receive the highest score she was not appointed solely on that basis. The complainant was informed by Human Resources of the outcome in December, and she acknowledged and accepted this. The respondent submits that there was no discrimination in the recruitment process and the complainant’s age had no bearing on the outcome of her application. The interview board assessed all applicants against Mandatory and Desirable criteria, one of which included any discriminatory elements.   It appears to the respondent that the complainant is seeking to attribute factors which are unrelated to the interview process and over two years after the interview to allege that she was discriminated against on the grounds of her age.  The complaint is also time-barred.

The respondent also refutes the complainant’s allegation that it was a requirement to be a veterinary nurse for appointment to the position.  What was required was current experience of clinical practice and whether they were a veterinary nurse or veterinary surgeon had no bearing on the outcome.

The respondent also submits that the complainant “has confused and interwoven a subsequent policy change” into her argument.  This change came about as a result of a review undertaken by the ACOVENE Accreditation Committee. This decision was not made in 2020 and the job advertisements and descriptions were updated in 2021 to reflect this change.

The respondent operates a Performance for Growth (P4G) process which is intended to facilitate faculty members develop their career.  At one such meeting with the complainant she was advertised that the only path available to Special Lecturers for promotion was through open competition.  In order to understand why there was no other promotion pathway available a meeting was arranged with the Dean, Professor Michael Doherty, and Dr Farrell.  This meeting took place on 20/10/2022.  Professor Doherty explained why there were no openings and specifically noted that the school did not have the budget or headcount to create new positions.

Professor Doherty gave evidence at the hearing.  He outlined his position with the respondent and confirmed that he holds a full Professor role.  He was Dean from 2016 until 2023.  Professor Doherty stated that he had a clear recollection of the meeting in October 2022 with the complainant.  The meeting was requested by Dr Farrell and there was one item on the agenda.  This was to explain the position in relation to Associate Professor posts.  Professor Doherty stated that there was no budget for such posts and there was no financial support available.  He did not consult with HR prior to the meeting.  Professor Doherty confirmed that he did not discuss age, ACOVENE, Ad Astra posts at this meeting.  Professor Doherty also stated that he did not snigger during this meeting and to do so would run contrary to his core values.  Professor Doherty also stated that he did not observe Dr Farrell snigger during the meeting and Dr Farrell did not discuss age.  This meeting was the only interaction he had with the complainant.

Professor Doherty was cross examined on behalf of the complainant.  The complainants note of the meeting was put to Professor Doherty.  Professor Doherty stated that the teaching of veterinary nurses and the ACOVENE recommendation was never mentioned at the meeting.  Professor Doherty also stated that he did not say to the complainant that he was told by HR that the complainant could not be given a promotion as she had reached pensionable age.   There was no discussion of age during this meeting.  In relation to the complainant’s note about the ratio of students to academic staff Professor Doherty stated that he could not remember if this was discussed.

Professor Doherty stated that he had no budget line for such posts and there was no funding to create new posts.  It was also put to Professor Doherty that the complainant’s note stated that he stated that the complainant was enthusiastic and passionate.  Professor Doherty said that he did not remember saying this,  but agreed he could have said it.   Professor Doherty stated that he did not say that applicants for the position of Assistant Professor which was advertised in 2020 had to be a veterinary nurse.  He also stated that he did not remember Dr Farrell stating this either.  Professor Doherty also stated that he was very clear that he did not make the comment noted by the complainant that the ACOVENE/VCI panel had recommended in 2019 that veterinary nurses should be lecturing to student veterinary nurses.

Professor Doherty was asked how he could explain the complainant’s note of the meeting. He stated that he could not.  It was put to Professor Doherty that of the 12 points in the note he disagreed with four of these and he could not recall the remainder.  Professor Doherty was asked if he considered the complainant to be an honest person.  He stated that he had no view but that she is an academic and he would agree that she is a person of integrity.

Professor Doherty was asked why he did not alert the complainant about the post which was advertised in July 2023.  He stated that it would not be usual for the Dean or Head of School to do so.

It was put to Professor Doherty that the letter from the respondent’s solicitor did not refute the points made about the meeting or that he sniggered.  Professor Doherty stated that his evidence in that regard was very clear.

Dr Robin Farrell gave evidence on behalf of the respondent.  She outlined that she is the Director of the Veterinary Nursing Programme with the School since 2018.    Dr Farrell stated that she had a good relationship with the complainant and described this as “very positive”.  Dr Farrell said she would describe the complainant as “very dedicated”.   Dr Farrell gave evidence in relation to the interview process in 2020.  She confirmed that this was a temporary post and she clarified that the clinical requirement was for more recent and relevant clinical practice.  Dr Farrell stated that the term “more recent” would be in the last 5 – 10 years.  Dr Farrell also confirmed that age was not a factor in the interview scoring process.  Dr Farrell stated that the complainant sought feedback and there were delays in communicating this due to challenges associated with remote working. 

Dr Farrell was asked to outline the background to the meeting of October 2022.  She explained that every year they have a Performance for Growth meeting, and this allows for a discussion on how someone can progress their career with the respondent.  There is no promotion pathway from a Special Lecturer role to Assistant Professor.  The complainant asked for this to be discussed with the Dean to see what the options were.  There was no decision made not to include the complainant in the meeting and her attendance was facilitated.  Dr Farrell confirmed that the purpose of this meeting was to discuss options with the Dean.

Dr Farrell was asked about the complainant’s notes of the meeting.  Dr Farrell stated that there was no discussion of a HR policy in relation to the complainant’s pensionable age or promotional opportunities. Dr Farrell was asked if there was a discussion about the ACOVENE recommendation and she stated that she did not remember such a discussion.  Dr Farrell was asked what was discussed at the meeting and she stated that they discussed potential posts.  Dr Farrell denied that she sniggered during the meeting.  Dr Farrell described the meeting as “difficult and uncomfortable as there were no options”.  Dr Farrell stated that the complainant’s notes were a “mis recollection and misrepresentation of the meeting”. 

Dr Farrell was asked about the “corridor meeting” she had with the complainant after the meeting with the Dean.  Dr Farrell stated that the complainant expressed to her that she was frustrated.  Dr Farrell said that she directed the complainant to the relevant policy.  Dr Farrell said that she was speaking with the complainant in order to check in with her.  Dr Farrell was asked if there was a prospect for promotion for the complainant as she was 66/67 years of age.  Dr Farrell said that there was no role.  Dr Farrell was asked if the Faculty Promotion Policy and in particular section 4 which deals with promotion vis a vie retirement age applied to the complainant and she stated that it did not.

Dr Farrell was cross examined on behalf of the complainant.  She was asked why some parts of the interview notes were redacted and she did not know why this was done.  Dr Farrell was asked about the ACOVENE recommendation.  She clarified that this was initially a verbal recommendation in 2019 and it was not acted upon until 2021.  Dr Farrell said that this was not a policy but rather a decision.

Dr Farrell was asked about the delay in providing interview feedback to the complainant.  She stated that there was no intention not to provide this feedback but there may be confusion on her part in relation to the relevant policy.

Dr Farrell was then taken through the complainant’s note of the meeting on 20 October 2022.  Dr Farrell stated that she did not recall the discussion in relation to ACOVENE as noted in points 1 and 12.  Dr Farrell stated that she was unsure and could not recall that the Dean mentioned that he spoke to HR about the complainant having reached pensionable age.  Dr Farrell confirmed that the note which made a reference to the ratio of students to academic staff was correct.  Dr Farrell also confirmed that point 7 was correct.  In relation to the other points in the meeting note Dr Farrell could not recall if some these items were said and for other points, she confirmed that they were not mentioned, and another point was deemed partially correct.

Dr Farrell confirmed that she would describe the complainant as a very honest person.  Dr Farrell was then asked about her corridor conversation with the complainant.  She stated that the average age of the team was not mentioned and that she did not know the age profile of the team.  Dr Farrell confirmed that she never mentioned anything about age to the complainant at that time.  It was put to Dr Farrell that she also mentioned policies to the complainant, and she confirmed that she did mention that the complainant should familiarise herself with the policy.  Dr Farrell confirmed that the “Faculty Promotion Policy” did not apply to the complainant, and she also confirmed that this was a “HR general policy”.

Dr Farrell was asked why she did not inform the complainant about the position which was advertised in July 2023.  Dr Farrell confirmed that this vacancy was not in her section of the department.

The complainant submitted a complaint to the Workplace Relations Commission on 06/04/2023 that she was discriminated against by the respondent, and this resulted in her not being able to obtain a promotional post of Assistant Professor.  The respondent submits that the complaint is not well founded as no discrimination took place in the interview process in 2020 or in a meeting which took place in October 2022 and which the complainant now seeks to connect with the interview process.

Section 6 of the Employment Equality Act defines 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.

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

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, age, 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”.

There is a serious conflict of evidence between the parties in this case particularly around what was considered at the meeting on 20/10/2022.  The facts are that the meeting took place and was attended by three people.  The meeting lasted 15 minutes.  The complainant compiled a 12 point note of this meeting which she did not circulate and described this as “her own personal notes of the meeting”. The complainant’s account of the meeting is substantially challenged by the respondent’s two witnesses who attended the meeting.

 I find that there is no evidence to substantiate the complaint that there was continuing discrimination over a period of time and that this complaint falls within the time period by virtue of section 77(6A) of the Act which provided for an extension in circumstances it was alleged that there was misrepresentation by the respondent in relation to the outcome of the interview process which concluded in 2020. 

There is no misinterpretation on the complainant’s part that due to the nature of her post, Special Lecturer/Tutor, with the respondent that the only path available to her for promotion to Assistant Professor is through open competition.   The meeting on 20/10/2022 was convened at the complainant’s request in order to understand why there were no other promotional options available.  The respondent has given compelling evidence that this was the only purpose of the meeting.  I accept that the complainant was disappointed with the outcome of the meeting.        

In conclusion, I prefer the clear evidence presented by the respondent. Consequently, I find the complainant, on the balance of probabilities, has failed to establish a prima facie case of discrimination (for the purposes of this Act) on the grounds of age in relation to her. On the basis of the foregoing, I find that this complaint is not well founded.

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

Discrimination.  Age.