decision template - ninth level...

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2014-078

Micheline Sheehy Skeffington(represented by Claire Bruton B.L. instructed by D.M O’Connor Solicitors)

versus

National University of Ireland, Galway (represented by John Brennan, Irish Business and Employers Confederation)

File Number: EE/2009/746Date issued: 13th November 2014

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Keywords: Employment Equality Acts, Gender, Access to Promotion, Indirect discrimination

Dispute1.1 The case concerns a complaint by Ms Micheline Sheehy Skeffington that National

University of Ireland, Galway (NUIG) discriminated against her on the grounds of

gender regarding access to promotion to Senior Lecturer contrary to Section 8(1)

(d) of the Employment Equality Acts 1998-2011 [hereinafter referred to as ‘the

Acts’].

1.2 The complainant referred a complaint under the Act to the Director of the Equality

Tribunal on 7th October 2009. On 10th August 2012 in accordance with his powers

under Section 75 of the Act, the Director delegated this case to me, Orlaith

Mannion, an Equality Officer, for investigation, hearing and decision and for the

exercise of other relevant functions of the Director under Part VII of the Acts. On

this date, my investigation commenced. Submissions were received from both

parties and as required by Section 79(1) of the Act a joint hearing commenced on

7th September 2012. Following receipt of redacted application forms for the 2008-

2009 competition the hearing resumed on 21st and 22nd October 2012. I would like

to express my gratitude to whoever went through the thirty voluminous

application forms and redacted the personal information (over 2000 pages) which

greatly assisted this investigation. The last piece of correspondence requested by

me was received on 4th July 2014.

Summary of the complainant’s case2.1 The complainant submits that the application process to Senior Lecturer in NUIG

is weighted against women. She is a College Lecturer (above the bar) in the

School of Botany in NUIG since 1990. Her academic background is she won an

entrance exhibition award to Trinity College Dublin in 1972, a Foundation

Scholarship there in 1975 and graduated with B.A. in Botany from TCD in 1976.

She was awarded a French Government Study Scholarship and studied at

Université de Montpellier where, in 1977, she obtained a Dipome d’Edudes

Appfondies (equivalent of a Masters in Science) for her research on vegetation at

the edges of saline lakes of the Rhone delta She joined NUIG (then UCG) as a

Junior Lecturer (below the bar) in 1980. She obtained her Ph.D. in 1983. Dr

Sheehy Skeffington has written or edited three books, published thirty two peer-

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reviewed papers – eighteen of which were in international journals including

high-impact journals in her field of study like Biological Conservation and

Forestry & Ecology Management. She is a member of the editorial board for the

Royal Irish Academy’s journal Biology and the Enviroment. She solely

supervised six PhD theses to completiion and co-supervised four more. She also

supervised five MSc theses (two on her own and three she co-supervised). She

has obtained research funding of over €1.4 million. She was appointed to the

Heritage Council in 1995 for a five-year term and was Chairperson of the

Wildlife Committee for a year there. She was involved in setting up the

Environmental Science degree and the MA in Rural Development in NUIG and

lectured in both. She submits that she is very committed to outreach work and

collaborates with policymakers (some of whom are former PhD students of hers)

and the wider community to ensure conservation principles gain traction in the

non-academic world.

2.2 She maintains an interest in tropical biology having been a Visiting Scientist in

Indonesia in 1984-85. She is a Council Member and only Irish representative on

the Tropical Biology Association (Headquarters in the University of Cambridge).

In his reference for this competition, her head of Department (Professor A)

described ‘Dr Sheehy Skeffington is widely recognised as one of Ireland leading

field botanists, an experienced ecologist and a committed conservationist’. Her

external referee pointed out that many types of ecological research require several

years to complete (i.e. they are not done in laboratory conditions but have to

follow nature’s cycles) so final publication rates for ecologists are consequently

lower in numerical output than other areas of science. Therefore, he points out

that ecologists’ works have to be considered from the point of view of quality

rather than numerical quantity. In his reference, he said ‘her publications are of

internationally high standard’.

2.3 Dr Sheehy Skeffington states that she loves teaching and research and believes

that she is good at both. She lectures to all undergraduate years of Science

students. She submits that she co-ordinates all field trips in relation to botany.

She is Year Head for 4th year students. As part of her application for this

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competition she submitted the extern examiner’s report for the Department of

Botany for the year 2004-2005:

“I was greatly impressed by the degree of personal and pastoral care the students had received during their degrees…The small group of staff responsible for teaching this degree should be congratulated on the results achieved

2.4 The complainant brought Professor A (Emeritus Professor of Botany) as a

witness to the hearing. He gave evidence at the hearing that she attracted the best

MSc and PhD students because she put such effort into mentoring them. Dr

Sheehy Skeffington also brought a former PhD student of hers who is now Head

of Biodiversity in Department of Arts, Heritage and the Gaeltacht as a witness.

He became emotional in the hearing when talking about Dr Sheehy Skeffington’s

contribution to his choice of career path. He gave direct evidence that her lectures

were inspirational and her emphasis on fieldtrips taught him that ecology was a

living science. He submits that Dr Sheehy Skeffington is more concerned about

science being translated into policy than glory-seeking for herself.

2.5 She became eligible to apply for promotion to Senior Lecturer when she reached

the top point of the College Lecturer scale. She was not shortlisted for the first

competition she applied for – the 1998-1999 round but submits she was not very

disappointed at that time as she did not expect to get it on her first attempt as she

is aware that the standard is high. She applied again in 2001-2002 round and

again was not shortlisted. In the 2006-2007 competition she was shortlisted and

interviewed but did not get on the panel. However, she submits that she felt

compelled to complain about the 2008-2009 competition when only one woman

was promoted. She maintains that this confirmed her suspicion that there was a

gender bias regarding promotions in NUIG.

2.6 Promotion to Senior Lecturer was assessed on three criteria:

Research and Scholarly Standing

Teaching and Examining

Contribution to School, University and Community

The relevant circular stated ‘Candidates would be expected to demonstrate

achievement in all three areas but may, in exceptional circumstances, be

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promoted on the basis of excellence in two’. Candidates were asked to submit an

application form with names of three referees - two external and one internal. The

application form was sent to Head of School to give a view on the merits of the

application. Candidates were then shortlisted and interviewed by either of two

boards:

(i) Arts, Social Sciences, Celtic Studies, Business, Public Policy and Law

(ii) Science Engineering and Informatics, Medicine, Nursing and Health

Sciences (this was the Board that interviewed Dr Sheehy Skeffington)

With each candidate invited to interview, the head of school recommended an

external interviewer – in Ms Micheline Sheehy Skeffington’s case – a Senior

Conservation Scientist with the National Parks and Wildlife Service (Dr B).

2.7 The complainant submits the interview was a bizarre affair. There were seven

people on the other side of table. There was only one woman on the panel

(Professor C) and the complainant submits she remained silent and passive

throughout. The complainant brought Dr B as a witness to the hearing and he

gave evidence that some of the interviewers only arrived a minute before the

interview and that there was no discussion of Dr Sheehy Skeffington’s

application before the interview or about what questions should be asked. He also

gave direct evidence that he sought marking schemes and guidelines prior to the

interview, which would be standard practice in his parent Government

Department, but he received no reply to his email. When he tried to argue in the

post-interview discussion that Dr Sheehy Skeffington was one of the leading

plant ecologists in Ireland, he submits that the other members talked over him. Dr

B was the only person with specialist expertise in the complainant’s area of work

but the committee challenged his mark and the collective mark was reduced

significantly saying that he did not know the standard of the other candidates and

they did. Dr B stated he has sat on many interview panels and this one fell far

short of best practice. He was anxious to add that he is not a personal friend of Dr

Sheehy Skeffington but felt an injustice was done in her not becoming

empanelled.

2.8 The complainant submits that the panel of successful candidates was supposed

contain fifteen people roughly half from Arts, Social Sciences, Celtic Studies,

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Business, Public Policy and Law and half from Science Engineering and

Informatics; Medicine, Nursing and Health Sciences. Not one woman was among

the first fifteen on the panel. The complainant submits that the University was

embarrassed by this and extended the panel so as to include one woman. She

submits this was merely a figleaf – a token gesture to disguise the institutional

sexism in the University. Only one out of seven female shortlisted applicants was

empanelled. Sixteen out of twenty-three male shortlisted applicants were

successful. She also points out that ALL women were in the lower half of

shortlisted applicants. No woman from the Science constituency was promoted.

On the subject of shortlisting she points out that there were forty seven valid

applications in the 2008-2009 competition. Twenty three out of the thirty two

male applications were shortlisted while only seven of the fifteen female

applicants were shortlisted i.e. proportionately more women than men did not

even get past the first hurdle. She also submits that fewer eligible female lecturers

even apply for Senior Lecturer. Dr Sheehy Skeffington argues this is not

surprising since the odds are stacked against them. The complainant came joint

21st out of a shortlist of 30. She sought feedback which, among other things,

said: ‘No formal evaluation of teaching’. However, in her application she did

submit both collated statistics and individual answers from student evaluations.

She submits that she had previously sought advice on her teaching portfolio from

the Director of the Centre of Education and Learning (CELT) in NUIG and he

praised her approach. This is in stark contrast to Candidate 7 who received a

higher score than the complainant in relation to Teaching even though he did not

submit a CELT evaluation either and had less than half of the teaching

undergraduate hours than the complainant had.

2.9 She submits the interview board ignored her role roles as a visiting lecturer at two

universities and that she was a member of a Board of Assessors for a Senior

Lecturer for a French University. She appealed the decision and the appeal was

heard by the Registrar (and Deputy President). Dr Sheehy Skeffington maintains

that he admitted the panel was mistaken that she did not use formal evaluation of

students but he did not alter her mark under Teaching and Examining to reflect

that correction. He also confirmed this in direct evidence at the hearing. She

submits the appeal was merely a tickbox exercise. She disagrees with the

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assertion by the respondent that her application was weaker in comparison to

other candidates and quotes the palaeontologist, Stephen Jay Gold ‘Few tragedies

can be more extensive than the stunting of life, few injustices deeper than denial

of an opportunity to strive or even to hope by a limit imposed from without but

falsely identified as lying within'1.

2.10 To demonstrate that there is a crowding of women at the bottom and middle in

NUIG, Dr Sheehy Skeffington submitted the following table2. It is derived from

a report the University compiled following disquiet about the lack of female

representation in on the 2008-2009 Senior Lecturer panel:

Grade distribution by gender in NUIG

Grade Female (% of

female academic

population)

Male (% of male

academic

population)

Grade total

(grade as % of

total academic

population)

Junior

Lecturer/below

the bar

28 (23%) 10 (9%) 38 (16%)

College

Lecturer/above

the bar

64 (53%) 42 (37%) 106 (45%)

Senior Lecturer 22 (18%) 34 (30%) 56 (24%)

Professor

(Personal Chair)

3 (3%) 9(8%) 12 (5%)

Professor

(Established)

4 (3%) 20 (17%) 24 (10%)

She submits that there is a funnel effect against women once they hit the age-

group where women traditionally have caring responsibilities e.g. child-

rearing years or caring for elderly parents.

1 From the Mismeasure of Man quoted in ‘Does Gender Matter?’ Nature Vol. 442 (13 July 2006)2 Professor Liz Doherty & Aoife Cooke The Report of the Working Group on Academic Career Advancement in NUI Galway May 2011 pages 3-4.

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2.11 She submits that four candidates were ineligible for promotion as they had not

reached the maximum point of College Lecturer scale and therefore should not

even have reached the shortlisting stage. The complainant points out that

Doherty & Cooke report specifically recommended that leadership roles (Head

of School etc.) should be allocated on the basis of open, transparent

competition. She submits that the failure to do this favours the ‘boys club’ and

disadvantages women when it comes to giving examples in the ‘Contribution

to School, College and Community’ heading. The report also recommended

gender awareness training for interview board members and career-planning

workshops for women3. These have been implemented subsequent to the

lodging of this case to the Tribunal. She also advances the argument that the

over-emphasis on research to the detriment of teaching is deeply gendered. Dr

Sheehy Skeffington maintains that women carry the bulk of the teaching load

in the university allowing the men to focus on their research and therefore get

promoted more quickly. One of the criteria for promotion to Senior Lecturer

was ‘Teaching: minimum of 150 undergraduate and postgraduate scheduled

student contact hours per annum over at least three years’. She points that

three successful male candidates (Candidates 4, 6 & 7) had significantly less

than the minimum requirement and yet got a higher score than her (who had

between 175 and 212 teaching hours depending on the year) under the

Teaching and Examining heading. She points out that Candidate 6 had only 67

Teaching hours and the interview board acknowledged this in their feedback

'small number of undergrad lectures though this will increase in future’. She

submits this is a classic case of men being promoted on their potential and

women being promoted on their past accomplishments.4

2.12 In the aforementioned Doherty & Cooke report, 70% of the 212 NUIG

academics surveyed believed that the Research criterion is valued over

‘Teaching and Examining’ or ‘Contribution to School, College and

Community’ criteria5. She submits that the marking bears this out – the

average score for successful candidates was 86 for research versus 84 for the

3 Ibid p. 164 Theory derived from Joanna Barsh and Lareina Yee Unlocking the full potential of women in the US economy (McKinsey 2011)5 Doherty & Cooke p.7

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other two categories She maintains this is in stark contrast to the stated

objective in the relevant circular advertising Senior Lecturer ‘The primary

objective of the scheme is to promote on the basis of performance and merit

assessed according to criteria which reflect the University’s educational

mission including especially its service to students’ (complainant’s

emphasis). She maintains the ‘private-sectorisation’ of university life with the

over-emphasis on obtaining research funding and self-promotion to the

detriment of educating students favours men over women. Dr Sheehy-

Skeffington maintains that many of successful candidates supervised less

PhDs, obtained less research funding and have written less peer-reviewed

articles than her and yet obtained higher marks under the Research heading.

She submits this discrimination is compounded by the predominance of men

on promotion boards. Dr Sheehy Skeffington pointed out the same woman

Professor C was on the interview panel that interviewed her for 2006-2007

round as well as the 2008-2009 round and she was the only woman on the

interview board of seven people. She submits this is tokenism at its worst.

2.13 Dr Sheehy Skeffington submits she was motivated to take this case because of

her family’s long history of dealing with equality issues. She points out that

her surname comes from when her grandparents took each other’s name on

marriage in 1903 i.e. Francis Skeffington became Francis Sheehy Skeffington

and Hannah Sheehy became Hannah Sheehy Skeffington as a symbol of the

equality in their relationship. She maintains every generation has their own

equality battles and this is hers. Dr Sheehy Skeffington submits that she is not

seeking positive discrimination – only a level playing field.

Legal submissions

2.14 The complainant submits that there is a continuum of discrimination in the

senior lecturer promotion process from both the 2007 and 2009 competitions

or alternatively that the respondent maintains a discriminatory regime, rule

practice or principle which has a clear and adverse impact on the complainant

because of her gender. The decision of Waldron v North Western Health

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Board,6 Gillen v Department of Health and Children7 and Hurley v Cork VEC8

and O’Brien v O’Callaghan hotels9. Therefore both competitions should be

considered. She submits that there was a link between both competitions as

the same woman sat on both interview panels. Regarding having only woman

on the interview panel, she cites Gleeson v the Rotunda Hospital and the

Mater Misericordiae where the Labour Court found ‘the composition of such a

board does make a case for a prima facie finding of discrimination’10.

2.15 The complainant submits that the applications forms for the candidates for

this competition demonstrate that the criteria were employed in an inconsistent

manner and that the process lacked transparency. There was no pre-interview

meeting and no training for the interview board. Interview notes were not kept

in a central file. The external interviewer was not allowed to make a

worthwhile contribution to the process. All of this took place against a

background of significant statistical disparity between women and men

holding senior positions in University.

2.16 Dr Sheehy Skeffington maintains she was excluded from the informal male

networks which mentored male applicants which gave them an unfair

advantage. e.g., the men were told to get the CELT evaluation of teaching

done and focus on research rather than teaching as well as being given

management roles.

2.17 The complainant was criticised for the lack of formal evaluation of teaching

even though the student evaluation that she submitted was approved by the

Director of CELT but candidate 6 also used a different assessment form that

the CELT evaluation and was not marked down for it i.e he got a higher score

for teaching than the complainant. The complainant submits that this

demonstrates direct discrimination - ‘the application of different rules to

6 DEC-E2003-021 7 DEC-E2003-0358 EDA1124.9 DEC-E2012-01010 DEE003

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comparable situations’ as per Finananzamt Koln-altstadt v Roland

Schumacher11.

2.18 The complainant cites Galway City Partnership v O’Halloran where the

Labour Court held that: ‘Where a better qualified candidate is passed over in

favour of a less qualified candidate an inference of discrimination can arise

(see Wallace v. South Eastern Education and Library Board[1980] NI 38 ;

[1980] IRLR 193 ). However the qualifications or criteria which are to be

expected of candidates is a matter for the employer in every case. Provided

the chosen criteria are not indirectly discriminatory on any of the proscribed

grounds, it is not for the Court to express a view as to their appropriateness.

It is only if the chosen criteria are applied inconsistently as between

candidates or an unsuccessful candidate is clearly better qualified against the

chosen criteria that an inference of discrimination could arise.’12 Also cited

are Horgan v DCU13 and Johnston v Louth VEC14 . The complainant submits

that a case that mirrors this instant case is South Eastern Health Board v

Burke. Like academia in nursing there is a vertical occupational segregation

i.e. there is substantial statistical imbalance between female nurses at entry

level and at Senior Management level. In that case, the female complainant

(who was already Acting Up in this role for this year) got 23% lower score

than the male successful candidate who had no such experience. Even though

one of the desirable criteria was a qualification in Gerontology, Ms Burke

got no marks for this. 15

2.19 The complainant also submits that she was indirectly discriminated. Indirect

discrimination is defined in Section 22 of the Acts:—(1) (a) Indirect discrimination occurs where an apparentlyneutral provision puts persons of a particular gender(being As or Bs) at a particular disadvantage inrespect of any matter other than remuneration comparedwith other employees of their employer.

(b) Where paragraph (a) applies, the employer shall be11 Paragraph 30 ECR I-225 referred to in Rasaq v Campbell Catering Ltd EED04812 EDA07713 EDA071514 EDA071215 EDA041

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treated for the purposes of this Act as discriminatingagainst each of the persons referred to (including Aor B), unless the provision is objectively justified bya legitimate aim and the means of achieving that aimare appropriate and necessary.

The complainant submits that men spend more time on research than women,

women care more about student welfare than men and are given the biggest

teaching burden and that men get management roles on a ‘nod and wink’ basis

that this is indirectly discriminatory against women. She submits the Doherty &

Cook report is evidence of this. She also states the Labour Court case Inoe v NBK

Designs Ltd is authority for the Tribunal using its own experience: ‘It would be

alien to the ethos of this Court to oblige parties to undertake the inconvenience

and expense involved in producing elaborate statistical evidence to prove matters

which are obvious to the members of the Court by drawing on their own

knowledge and experience.’16

Summary of the respondent’s case

3.1 The respondent utterly refutes any allegation of discrimination on the ground of

gender. They submit their processes are fair and transparent. NUIG maintains they

are blessed with a high standard of lecturers and the internal recruitment campaign

to Senior Lecturer is a highly competitive process. Dr D (who was on the

rapporteur on the interview board) gave cogent evidence that he only obtained

Senior Lecturer on his third attempt. He submits that he learned from the feedback

given on the occasions he failed and worked on the weaknesses in his application.

3.2 Regarding the rough note Dr D wrote during the interview process ‘no formal

evaluation of teaching’ the respondent maintains that he was correct. The

complainant did not undertake an independent evaluation of her teaching.

However, the Registrar did acknowledge during the appeal process that the

complainant did submit an evaluation of her teaching. NUIG submit her

application would have been enhanced had she submitted a grouped evaluation

conducted by CELT but submits that it is not discriminatory for choosing not to

mention this in their guidelines as it applies to men as well as women. NUIG

16 EED0212

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submit that she got a high score for teaching and examining (79) as the average

score for the Science constituency was 82.23.

3.3 Regarding not being given credit for the amount of fieldwork the complainant

does, the respondent points out that Candidate 1 (i.e. first on the panel) is an

archaeologist who would also do significant amounts of fieldwork.

3.4 The respondent states it is regrettable that the other member of the Science

constituency board (who was female) was unavailable on the day of Dr Sheehy-

Skeffington’ interview. NUIG submits that it always aims for gender balance on

interview boards. Professor C, who was the sole woman on the interview board

that day, gave direct evidence at the hearing that this was the only time she was

described as a ‘passive female’ and that she was not a designated questioner for

that interview. When I asked about the complainant’s theory that the teaching

burden falls on women allowing the male lecturers to focus on research, she

replied that she encourages all her academic staff (both men and women) to be

research-active. The respondent points out (which the complainant acknowledges)

that no discriminatory question was asked at interview.

3.5 The respondent points out that Dr Sheehy Skeffington’s form was a good

application and she was only six marks off being empanelled. NUIG denies that

extra weighting was given to the Research criterion. In direct evidence, the

Registrar stated that Dr Sheehy Skeffington had not published in the highest

impact journals in her area e.g. Nature or Science. The respondent readily admits

that management roles and candidates who held positions of responsibility on

specialist bodies ensure a higher mark under the ‘Contribution to School

University and Community’ heading. However NUIG denies that ‘acting up’

vacancies such as Head of School etc. are allocated in a discriminatory way.

3.6 In direct evidence Dr D said that all candidates select referees who are likely to

give a favourable reference so less credence is given to references as they are

likely to be positive. The application form and interview were the most important

aspects in assessing candidates.

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3.7 The respondent acknowledges that the complainant has successfully supervised

many post-graduates to completion. However the NUIG Guidelines take accounts

of this. A satisfactory record in the Science constituency would be a minimum of

three Doctorates or five Research master or fifteen Masters (minor) thesis. It is

reduced for the Arts constituency. An excellent record would be a significant

increase on this. Three doctorates are not a minimum requirement as the

complainant suggests. The guidelines are merely that – guidelines.

3.8 Regarding the four candidates who the complainant alleges were ineligible, she

was wrong about three candidates i.e. they had the correct amount of service to

apply. In relation to Candidate 10, the respondent acknowledges the complainant

is technically correct. All candidates should have been eligible before the closing

date as per the guidelines. However the Associate Secretary in charge of running

the competition sent a memorandum to a member of his staff stating that all

candidates are eligible who would reach the top of the scale on 1st January 2009

(rather than the closing date of 31st October 2008 as stated in the Circular).

However, the respondent states this administrative error affected all candidates i.e.

men and women.

3.9 The respondent disputes that men teach more than women in the University. From

their workload model, they compiled data that in the School of Life Sciences

(which is the complainant’s school) the average number of hours that women

spent teachings was 131 while men spent 196.

3.10 The respondent denies that the appeal process was a tickbox exercise. NUIG

submits that it was taken very seriously. The Registrar met with the complainant

and listened to her concerns and the Appeals board met on 9th September 2009. In

the minutes of that meeting it is pointed out that there is ‘no requirement that there

be any gender balance among those promoted’.

Legal arguments

3.11 The respondent submits that the 2007 competition is out of time. It was

extremely onerous on them to supply the redacted applications of the 2008/2009

competition and they submit it would be ludicrous to expect the same for a

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competition that happened five years before the hearing with a different interview

board many of whom have retired since. They submit that Dr Sheehy Skeffington

did not submit a grievance to the respondent immediately after the 2007

competition.

3.12 NUIG cited UCD v Dr Myles Rath: ‘it is not for the Court to form its own view

on the merits of the complainant or his suitability for promotion. Rather it is to

consider if the respondent has established that the decision which was taken by

UCAATP was untainted by age discrimination. The Court concludes that the

decision was not so tainted and any subjective view that may have as to the

fairness of the decision is irrelevant.’17 The respondent also refers to Galway City

Partnership v Josephine O’Halloran18.

.

Conclusions of the Equality Officer

Preliminary issue – time limits

4.1 In the circumstances of this case, I am in agreement with the respondent that the

2006-2007 competition is time-barred. The complainant should have initiated a

complaint within six months of being told she was unsuccessful in the 2007-2008

competition to include it in this case. In coming to this conclusion I am guided by

the Labour Court decision Department of Justice Equality and Law Reform v A

Worker which also deals with promotion competitions: ‘Having examined the submissions of both parties on this point the Court finds that the competitions were independent of each other. The Complainant did not establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions.’19 Dr Sheehy-

17 EDA11918 EDA07719 EDA1422

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Skeffington’s complaint regarding the 2008-2009 competition is within time.

Access to promotion – direct discrimination4.2 Section 8 prohibits discrimination on any of the nine grounds specified in the Act

in relation to promotion. In O’Higgins v UCD the Labour Court give a useful

précis of what needs to be considered when looking at whether a promotion

competition is tainted with discrimination:

‘1.It is for the Complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination

2. If the Complainant discharges that burden it remains for the Court to decide if those facts are of sufficient significance to raise the inference contended for.

3. It is not necessary to establish that the conclusion of discrimination is the only or the most likely explanation which can be drawn from the proven facts. It is sufficient if it is within the range of presumptions that can be properly drawn from those facts

4. In cases concerning the filling of a post it is not the role of the Court to substitute its views on the merits of candidates for those of the designated decision makers. Its only role is to ensure that the selection process is not tainted by unlawful discrimination.

5. The Court will not normally look behind a decision in relation to appointments unless there is clear evidence of unfairness in the selection process or manifest irrationality in the result

6. A lack of transparency in the selection process combined with an absence of any discernible connection between the assessment or qualifications of candidates and the result of the process can give rise to an inference of discrimination.

7. Where a prima facie case of discrimination is made out and where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out.

8. The court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution’20

20 EDA131 This determination by the Labour Court was upheld by Cooke J in the High Court [2013] IEHC 508

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4.3 Having read the extensive submissions from both sides and listened to the

evidence of many witnesses, I am satisfied that the complainant has established

the following:

Although, on paper, the promotion to Senior Lecturer appears to be a fair

process with definitive criteria, its implementation fell short of best practice in

recruitment. There was no training for interviewers (in the Employment

Equality Acts or otherwise), there was no pre-meeting to discuss each

candidate nor were questions agreed beforehand and notes were only retained

by the rapporteur. A collective mark was given. The external interviewer’s

(and only expert in the complainant’s field of study) suggestions were ignored.

Prior to the interview, Dr B requested marking schemes but nobody from

NUIG responded which is discourteous as well as highlighting the ramshackle

approach to the process.

Worryingly, one candidate (male) promoted was not even eligible for the

competition. I do not accept the respondent’s contention (Paragraph 3.8) that

this was gender-neutral. All female applicants short-listed met the requirement

of having enough service. Clearly all men did not. 53% of female applicants

were rejected at the shortlisting stage. Only 28% of male applicants were.

Through this administrative mistake, a man was erroneously empanelled. This

had serious implications for the other candidates. He took up a place in the

panel which could have gone to either a man or a woman.

In O’Higgins v UCD the Labour Court found: ‘The gender composition of the UCAATP must also give rise to considerable disquiet. It is now universally accepted that an appropriate gender balance within selection boards is an essential prerequisite to the effective attainment of full equality of opportunities between men and women in employment. That is particularly so in professions and occupations in which women have traditionally been underrepresented.’21 On this topic, in the letter (undated) from the Registrar to the complainant following her appeal, he wrote ‘The panels are gender balanced and operate in a completely objective manner’. I realise that a Registrar of a University is a very prestigious

21 ibid

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and busy role and I do not wish to be overly pedantic. However, there is an important difference between gender representation and gender balance. There was only one woman on Dr Sheehy Skeffington’s interview board of seven people. That is not gender balance. While I have no jurisdiction under the Universities Act 1997, I note that 12 (k) of that Act states that one of the objects of a university shall include ‘to promote gender balance and equality of opportunity among students and employees of the university’.

The Registrar was on Dr Sheehy Skeffington’s interview board and was also involved in hearing her appeal. It would have been preferable if somebody independent of the interview process heard the appeal. There was a discrepancy of evidence between him and Dr D (the raportuer) at the hearing. The Registrar maintained he asked Dr D to alter Dr Sheehy Skeffington’s mark to take account of the evaluation of her teaching that she compiled. Dr D did not recall this conversation. Irrespective of whether or not the conversation took place, Dr Sheehy Skeffington marks were not changed on appeal and she remains a College Lecturer.

The complainant is correct that three successful male candidates (Candidates

4, 6 & 7) had significantly less than the minimum requirement of contact

hours (as opposed to postgraduate supervision) with students and yet got a

higher score than her under the Teaching and Examining heading.

No candidate (successful or unsuccessful) has supervised more PhDs to

completion than the complainant

Regarding ‘Contribution to School, College and University’ Candidate 14, by

his own admission, says he does not have much interaction with colleagues

preferring to focus on research and gave few examples of extracurricular

responsibility. Yet he received three marks more than the complainant under

this heading. Candidate 16’s own referee said in his reference that his

‘contribution to School, University and Community is somewhat measured.

The contributions that he does make are tightly aligned with the priority he

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gives to research.’ Candidate 16 also got a higher mark than the complainant

under this heading. What makes this anomalous is that only two candidates

have served on a statutory body – namely the Heritage Council – the candidate

who came first and the complainant. That two other candidates who do not

focus their energy outside of their research get a higher mark than the

complainant under this heading is an example of the same criteria being

applied differently to different people. Candidate 1 received 92 marks under

this heading for being Chairperson of the Heritage Council even though he

was only appointed to the Council four months previously. While the

complainant was merely Chairperson of Wildlife Committee for a year, she

did serve five years on the Council. She received 80 marks. Twelve marks

seems a disproportionate difference between the two under this heading.

4.4 While none of these findings would be determinative on their own, cumulatively I

am satisfied that the complainant has established a prima facie case of discrimination.

Now I will turn to the rebuttal:

I am in full agreement with the respondent that the amount of postgraduate

theses supervised is a guideline rather than a hard criterion. However, length

of service and minimum teaching requirements are essential criteria (by any

reading of the circular) and these were ignored in relation to some of the

successful candidates – all of whom were men. The only woman empaneled

more than met the minimum criteria.

The respondent put huge emphasis on the high standard of applicants.

Nevertheless only one candidate did not possess a PhD (which I would have

thought was de rigeur for a Senior Lecturer in a leading University in the 21 st

century) and he came first.

NUIG said a weakness in the complainant’s application is that she did not

have articles published in the highest-impact journals. However, from a

cursory look, many of the successful candidates did not possess high H

indexes either. Significant marks seemed to be given under the research

heading for attracting funding for which the complainant had a fair record but

others working in the areas which attract funding easier fared better. It is

legitimate for a university to put an emphasis on obtaining funding but this

should be stated clearly in the guidelines.

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In this type of complaint, it is important to establish that a factor in the

complainant not being promoted is because of the discriminatory ground

rather than a personal dislike. Again I agree with the respondent that

candidates choose referees who will give them a positive recommendation. In

general the references were positive. However, none were as glowing as the

references for the person (female) who came 26th out of 30. Her former

Professor at a prestigious American University (It is ranked 174 in the World

University rankings while NUIG is ranked 287) ‘I rank her as one of the best

two or three best students – possibly the best – whom I have trained at [his

University].’ Her internal referee who gave lukewarm references to other

people stated ‘No doubt there will be applicants for promotion to SL who have

strong claims arising from excellence in one or perhaps two of the key areas

for assessment. But I would doubt very much if there are many other

applicants whose excellence in performance has been as sustained and

impressive as [Candidate 26] across all the areas research, teaching, service to

the University and to the wider community under which these applications for

promotion are to be assessed. I support her application for promotion warmly

and without reservation.’ – see Paragraph 4.6 also

Perhaps the most significant frailty to the respondent’s rebuttal is the statistical

evidence. Men are in the minority in the College Lecturer grade (40%) but,

significantly, that statistic is almost inverted when it comes to the next

promotional grade - 61% of Senior Lecturers are men. The attached table

shows the internal promotions to Senior Lecturer from 2001 to 2009:

Men Women Total

Applications 97 35 132

Successful 50 11 61

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It is clear from the above table that male applicants have a one in two chance of

being promoted to Senior Lecturer while women who apply have less than a one

in three chance of the same promotion. For these reasons, I am satisfied that the

complainant has established a prima facie case of direct discrimination and the

respondent has failed to rebut it.

Indirect discrimination

4.5 The complainant states that the following are indirectly discriminatory against

women - that men spend more time on research than women; women care more

about student welfare than men; women are given the biggest teaching burden

and that men get management roles on a ‘nod and wink’ basis. She cites NBK Ltd

v Inoe. However, in that case the complainant provided Labour force survey data

to show that women work part-time more often than men. Based on my own

experience I cannot categorically say any of the four sweeping generalisations by

the complainant are certainly true. Neither does Doherty & Cooke nor the

statistics provided by the respondent in Paragraph 3.9 provide strong proof that is

the case. Deeper research will have to be done. These arguments represent a

misunderstanding of indirect discrimination and therefore fail.

4.6 However, I find that there is one apparently neutral provision that puts women at

particular disadvantage. The application form to Senior Lecturer asks people to

nominate when they were on maternity leave or other unpaid leave so that it

could be discounted. Male applicants left this blank. The complainant referred to

caring responsibilities for her mother in the 1990s, Candidate 24 mentioned

adoptive leave taken, Candidate 26 referred to parental leave and Candidate 28

mentioned maternity leave and previously job-sharing. Of the seven female

shortlisted candidates three did not make any reference to caring responsibilities

– candidate 17 (only successful female) Candidate 19 and Candidate 21 – all of

whom were the highest placed women in the competition. I accept the purpose of

asking this question on the form had a legitimate aim in that it was intended to

make allowances for employees when they are not available for work. In reality,

it had the opposite effect i.e. it was discriminatory. I cannot escape the

conclusion that the majority of female applicants drawing attention to their caring

responsibilities outside the workplace disadvantaged them against the male

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applicants. Therefore, the means chosen was neither appropriate nor necessary

and so cannot be objectively justified. Therefore I find the respondent has

indirectly discriminated on the ground of gender in relation to this issue.

Decision

5.1 I have concluded my investigation of Dr Sheehy Skeffington’s complaint and

hereby make the following decision in accordance with Section 79(6) of the Acts.

I find that the respondent discriminated against the complainant on the grounds of

gender regarding access to promotion. In considering redress I am guided by

Article 25 of the recast Directive which states penalties must be effective,

proportionate and dissuasive22.

5.2 In accordance with Section 82 of the Act, I order the respondent to:

(a) Promote Dr Sheehy Skeffington to Senior Lecturer from 1st July 2009 and that

she be paid in full the necessary adjustment in salary and any other benefits

applying to the post accruing with effect from that date. This may represent

income for tax purposes.

(b) Award the complainant €70,000 which represents approximately a year’s

salary. This part is redress for the infringement of Dr Sheehy Skeffington’s

statutory rights and, therefore, not subject to income tax.

(c) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct

a review of its policies and procedures in relation to Promotion to Senior

Lecturer to ensure that they are in compliance with these Acts with particular

reference to the gender ground. Unless this decision is overturned on appeal, a

report on progress of this review must be made to the Equality Authority (or

its successor) within one year of the date of this decision. If this is not done,

the Equality Authority may (with the consent of the complainant) apply to the

Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts.

22 Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation Official Journal L 204 , 26/7/2006 P. 0023 - 0036

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_______________

Orlaith Mannion

Equality Officer

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