EDA2438

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043833 (CA-00054117-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 12 September 2024.

A Labour Court hearing took place on 25 September 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Paul O’Sullivan of a decision of an Adjudicator Officer (ADJ-00043833) under the Employment Equality Acts 1998 – 2015 (“The Acts”). The Adjudication Officer did not uphold his complaint of discrimination on the ground of age or gender. 

The appeal was given to the Labour Court on 12 September 2023, and an appeal hearing conducted in Limerick on 25 September 2024.

For ease of reference the parties are given the same designation as they had at first instance. Hence Paul O’Sullivan is referred to as “the Complainant” and Munster Technological University Kerry is referred to as “the Respondent”. 

Both parties confirmed that they were satisfied that the Court had read all written submissions and supporting documents, and that each side was given an opportunity to make all relevant submissions to the Court. An opportunity was afforded to the parties to give oral evidence. The Court heard evidence from Professor Joseph Walsh, on behalf the Respondent. No witness testimony was proffered by the Complainant.

Summary of Complainant’s Case:

The Complainant was discriminated against on the grounds of his gender and his age having applied for the position of Assistant Lecturer in Pharmacy in the Department of Biological and Pharmaceutical Sciences, for which he was interviewed on 22 June 2022. The Complainant is male and was 51 years old at the time of the interview.

The Complainant submits that the Respondent had a preferred type of employee who are all female and predominantly under 30 years old.  The Respondent bypassed their own recruitment process and gave the job to a female that did not have the necessary qualifications or experience for the role but was of a similar age to other successful Assistant Lecturer in Pharmacy employees.

The Job Description for the Assistant Lecturer in Pharmacy post states that the minimum qualifications for appointments are:

“(a) Appropriate Honours primary degree (second class or higher) in Pharmacy or equivalent (i.e. PSI Accredited Pharmacist)

and

(b) Three years relevant post graduate experience, i.e. three years relevant experience having gained the qualifications at 1(a) above

Desirable:

Appropriate post graduate qualification (Masters; Phd)

Excellent communications skills”

The successful candidate appointed did not comply with the minimum criteria set for the role.

The successful candidate was approximately 25 years old with a basic 5-year pharmacy degree. She was registered on the Pharmaceutical Society of Ireland (PSI) register as a pharmacist on 5 November 2020. The PSI register is a public register showing if a person is registered as a pharmacist. Despite not having three years’ postgraduate experience, the successful candidate was screened for interview and given the job. She had 18 months part-time experience and was undertaking postgraduate study at that time. It is not possible for someone accredited with the PSI register in November 2020 to have three years’ experience by June 2022.

The recruitment process was flawed. There were four members of the interview panel. During the interview conducted via zoom, the Complainant noticed an additional person sitting beside one panel member, who then moved out of sight. No explanation was given for that person’s presence. He recognised that person as the owner of a local pharmacy and believes that she had an undue influence on the selection process.

After the interview process the Complainant submitted a complaint and data request to the Respondent. The data provided shows that candidates appointed to the role of Assistant Lecturer in Pharmacy are 100% female and 75% under 30 years old.

• The first candidate appointed as an Assistant Lecturer in Pharmacy in May 2018 was female and approximate 29 years old, with approximately 6 1/2 years post-registration experience.
• The second candidate appointed as an Assistant Lecturer in Pharmacy in May 2019 was female and approximately 44 years old, with twenty plus years’ experience.
• The next successful candidate appointed as an Assistant Lecturer in Pharmacy in June 2020 was female and approximately 27 years old which is 3 1/2 years close experienced.
• The successful candidate for the Assistant Lecturer in Pharmacy post advertised in May 2022 was female and approximately 25 years old, with 18 months part-time experience.

The Complainant submits that a bias towards female and younger applicants exists locally within the department which is facilitated by the HR department.

The Complainant submits that he was subject to unfair treatment whereby the Respondent bypassed the established selection process and allowed the successful candidate to be screened in for interview when she could not have had the required qualifying standards for the post. Only two candidates were interviewed for the role. He was deemed to be less suitable and to have less potential. The Complainant submits that he would have been the only candidate for the role if the screening process was applied correctly.

Summary of the Respondent’s Position

The Respondent rejects the allegation that the Complainant was discriminated against on the grounds of gender and age in the selection process for appointment as an Assistant Lecturer in Pharmacy, for which he was interviewed on 22 June 2022.

The Munster Technological University (“MTU”) was established on 1 January 2021, following the merger of The Institute of Technology Tralee and the Cork Institute of Technology. Pharmacy is a new subject area and since the introduction of Pharmacy programmes, MTU has advertised and interviewed for Pharmacy Assistant Lecturers on five separate occasions.

The Recruitment Process

In May 2022, the Respondent advertised for a temporary Pharmacy Assistant Lecturer.  Minimum qualifications for appointment to the post were outlined in the job description as set out by the Complainant above.

Four candidates applied for the post (one male, three female). Two female candidates were screened out as they did not meet the minimum entry requirements for the post. Two candidates were screened in (one male, the Complainant, and one female) and called for interview and interviewed.

The Respondent rejects the assertion that it is not possible that the successful candidate, who was accredited to the PSI register in November 2020, had 36-month post graduate experience. The successful candidate received her primary honours degree (BPharm) in 2019. There was no requirement that candidates be PSI registered in addition to having a primary degree. The successful candidate had three years’ experience from May 2019.  Therefore, the successful candidate had three years post graduate experience in May 2022.

The Selection Board was constituted in line with the recruitment and selection procedures operating for MTU Kerry. The procedures at the time of the interviews were the Institute of Technology, Tralee procedures. The Board was gender balanced. The interviews were conducted on 22 June 2022 and were held online via Zoom.

The criteria for selection at interview which were disclosed to candidates, without the marking scheme, were as follows:

(a) Qualification (20 marks)

(b) Experience/Achievement to Date (30 marks)

(c) Communications and Pedagogy Skills (20 marks)

(d) Professional & Personal Development/Potential (20 marks)

(e) Knowledge of and Interest in Higher Education Sector (10 marks)

(f) Team Working & Organisational Skills (20 marks)

Total 120 marks

The Complainant scored 83 out of 120 broken down as follows: Qualifications (15/20) Experience/Achievements to date (25/30) Communications and Pedagogy Skills (10/20) Professional & Personal Development Potential (10/20) Knowledge of and Interest in Higher Education Sector (8/10) Team Working & Organisational Skills (15/20).

The successful candidate (a woman) scored higher in all categories, bar two categories.

The duties of Assistant Lecturer, include teaching, assessment, course development and research. Whilst the Complainant has experience as a retail Pharmacist, he does not have any disclosed experience in lecturing, academic assessment, course development and research and listed no publications in his Application Form.

The Selection Board operates on the basis of unanimous decision. Based on the scores given, the Selection Board unanimously agreed to recommend the successful candidate for the post. There is no question of a decision being made by reference to any discriminatory ground, including gender or age.

The Respondent categorically rejects the assertion that there were undeclared additional people present at the interview. The Selection Board had no control over how the Complainant’s device was set up for Zoom and this was entirely a matter within his control.

The Respondent responded to all requests for information submitted by the Complainant.

The Respondent rejects any assertion that gender was a relevant factor for selection of candidates.  The candidate pool for Pharmacy Lecturers/Assistant Lecturers is predominately female (74% of applicants and 83% of qualified applicants) and therefore it is not discrimination but the gender makeup of the candidate pool that is driving the gender makeup of the appointees in this area.

The Respondent rejects any assertion that age was a relevant factor for selection of candidates. The Application Form used in the recruitment of staff does not request the candidate’s age, therefore, it is not possible to confirm the age of the candidates. For the purposes of this submission, the Respondent used the date that candidate qualified with their primary degree - assuming they were 22 years of age at the time - to determine the possible age of candidates. That data shows that over 77% of applicants were aged under 50 and over 50% were aged under 40.

To establish a prima facie case of discrimination the Complainant must show that he was subjected to specific treatments; and that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Melbury Developments Ltd v Valpeters [2010] ELR 64 the Labour Court, in considering allegations of discrimination on the ground of race, held that “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

In this case, the Complainant cannot establish a prima facie case for discrimination in relation to his application or interview process or the decision to offer the role to another candidate. The Respondent acted in accordance with the selection and recruitment criteria and in accordance with fair procedures at all times. It is evident that the application process is based on objective criteria and that, based on said criteria, another candidate was deemed to be more qualified and suitable for the role and that gender and age played no part in the decision of which he complains.

Evidence of Professor Joseph Walsh

Professor Joseph Walsh told the Court that he conducted the candidate screening process for the post with the Head of Department. That process was conducted having regard to the minimum qualifications and minimum work experience required for the post. The minimum qualification specified is an honours primary degree or equivalent. Both candidates had a primary degree in pharmacy and were screened in on that basis. Both candidates had three years minimum postgraduate work experience and so were screened in on that basis.

The successful candidate had a primary degree in pharmacy which was awarded in May 2019. Thereafter, she completed a Master’s degree. Between May 2019 and May 2022, she completed relevant work experience. Credit is given for work experience undertaken during a Master's or Doctorate degree, as individuals engage in teaching, demonstrations, research and publications and the summation of those activities equates to relevant work experience. The successful candidate had the required work experience as her postgraduate experience included teaching, demonstrations, and research which, in addition to her locum work and academic publications, meant that she met the minimum requirement for three years work experience. Therefore, she was screened in for the role.

Under cross examination, Professor Walsh said that an individual does not need to be accredited to the PSI to get through the screening process. The policy is that a candidate has an appropriate honours pharmacy degree or equivalent. The successful candidate did not have to be accredited to PSI, if they had an appropriate honours qualification.

There was an external member on the interview panel. After each interview, panel members allocated their own individual scores. The marks were discussed, and a collectively agreed mark awarded for each section that was signed off by the four panel members.

Relevant Law

Section 6(1) of the Act provides, in relevant part, as follows: -

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a)  a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( 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 85A (1) of the Act provides: -

85A.— (1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Deliberations and Findings

In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the Complainant and the Respondent. 

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed.

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so. he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The primary facts contended by the Complainant are the Respondent bypassed its own recruitment policy by screening the successful candidate for interview without regard to the minimum qualifying criteria set down for the post, the Respondent deviated from its recruitment policy in the way in which the interview was conducted and to date all appointments made to the position of Assistant Lecturer in Pharmacy are female and younger than the Complainant indicating a bias in favour of young female candidates.

The Complainant submits that these facts are of sufficient significance to raise an inference of discrimination such that the burden of proof rests with the Respondent to prove that the principle of equal treatment was not infringed.

The issue for the Court to consider in the first instance is whether or not these primary facts can be established from which discrimination can be inferred.

Who are the Comparators?

The Complainant cites as a comparator the successful candidate appointed to the position for which he applied in May 2022.

The Complainant also cites as comparators the three other Assistant Lecturers in Pharmacy employed in the MTU Department of Biological and Pharmaceutical Sciences, as all appointments made to the position of Assistant Lecturer in Pharmacy are female and younger than the Complainant. No evidence was submitted by the Complainant to show how the three Assistant Lecturers in Pharmacy employed by the Respondent prior to the May 2022 competition were relevant to his complaint of direct discrimination in that competition.

The selection process

The Complainant’s assertions about the screening process are based on his knowledge of the accreditation requirements set by the PSI, which require a master’s in pharmacy degree, and his view that the successful candidate could not have the required three years’ postgraduate experience, as during some of this three-year period she was engaged in post-graduate study, and this could not be said to amount to postgraduate experience.

Professor Joseph Walsh’s evidence was that an individual does not need to be accredited to the PSI to get through the screening process. All that was required was that a candidate must have an appropriate honours pharmacy degree or equivalent, and that the successful candidate met the minimum requirement for postgraduate work experience. Credit was given for relevant work experience undertaken during postgraduate studies, and the successful candidate could show that she had three years relevant work experience in teaching, demonstrations, and research in the three-year period between May 2019 and May 2022.

 Having regard to Professor Walsh’s evidence the Court finds that there is no basis to the assertion by the Complainant that the Respondent bypassed its selection policy when it screened the successful candidates for interview for the post. The Respondent was entitled to take account of the candidate’s work experience gained during and in conjunction with her post-graduate studies and this did not amount to a divergence from the minimum qualification criteria.

The Interview Process

The Complainant asserts that there was undue influence exerted by an individual, who was not a member of the interview panel but was present at the interview, on the outcome of the interview process.  The Respondent disputes that there was anyone other than the interview panel in attendance and any decision in relation to the awarding of marks was unanimous. In the absence of any sworn testimony from one of the members of the interview panel or from the Complainant on this matter the Court is unable to make a finding either way. As the burden of proof is on the Complainant to establish relevant facts, the Court finds that he has not discharged this burden and in those circumstances no inference of discrimination can be drawn.

As is well established in Melbury Developments Ltd v Valpeters and in subsequent decisions of this Court, assertions unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. To ground a complaint under the Act it is not sufficient for a Complainant to make broad assertions without supporting witness or evidence that establishes fact of sufficient significance to raise a presumption of discrimination.

Having regard to the oral and written submissions and the testimony proffered, the Court finds that the Complainant has not established sufficient facts from which discrimination may be inferred. 

All appointments to the post of Assistant Lecturer in Pharmacy indicate a bias in favour of young female candidates

The Complainant relied on the information supplied to him from the Respondent pursuant to a data access request to demonstrate that all appointments, including the 2022 appointment to the position of Assistant Lecturer in Pharmacy to date have been female and that 75% of those appointed were under 30 years of age.

The Respondent rejects any assertion that gender was a relevant factor for selection of candidates. The Respondent submission was that the candidate pool for Assistant Lecturer in Pharmacy post is predominately female (74% of applicants and 83% of qualified applicants) and that explains any alleged gender imbalance – it is the gender and age makeup of the candidate pool that drives the gender and age makeup of the appointees in this area.

The Respondent rejects any assertion that age was a relevant factor for selection of candidates. The Application Form used in the recruitment of staff did not request the candidate’s age, therefore, it is not possible to confirm the age of the candidates. For the purposes of this submission, the Respondent used the date that candidate qualified with their primary degree - assuming they were 22 years of age at the time - to determine the possible age of candidates. That data shows that over 77% of applicants to the role of Assistant Lecturer in Pharmacy were aged under 50 and over 50% were aged under 40. It asserts that the age of the candidate pool in the competitions for those roles reflects the age make-up of the successful appointees.

The Court finds that in circumstances where 83% of qualified applicants are female, the fact that all of the successful candidates to date are female cannot be said to raise an inference of discrimination. The Court also finds that at the time of the selection and interview processes, the selection and interview panels had no knowledge of the actual age of the candidate and no evidence was provided by the Complainant to demonstrate it was a consideration for selection or appointment to positions. The Court is satisfied that the criteria for selection set out at (a) to (f) was applied and the Complainant was outscored by the successful candidate at interview.

The Complainant has failed to establish primary facts from which it could be inferred that he was discriminated against on the ground of age or the ground of gender during the cognisable period for the within complaint.

In any case of alleged discrimination, the Complainant must first prove the primary facts upon which he relies to advance a claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination such that the burden of proof shifts to the Respondent.

In this case, the Complainant has failed to establish a prima facie case of discrimination. The Court therefore finds that the Respondent did not discriminate against the Complainant on the age ground or the gender ground in contravention of the Act.

Determination

The Court determines that the Complainant was not discriminated against on the ground of age.

The Court determines that the Complainant was not discriminated against on the ground of gender.

The Adjudication Officer’s Decision is upheld, and the appeal fails.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
15 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.