DETERMINATION NO. EDA0715
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998
DUBLIN CITY UNIVERSITY
(REPRESENTED BY TOM MALLON B.L.
INSTRUCTED BY ARTHUR COX SOLICITORS
- AND -
MS JANE HORGAN
(REPRESENTED BY CARVILL & COMPANY)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal Under Section 83 of The Employment Equality Act, 1998 Dec-E2006-22
2. A Labour Court hearing took place on 24th April, 2007. The following is the Court's Determination:
In April 2001 Ms Horgan (herein after called the Respondent), a Senior Lecturer in the employment of the University, (herein after called the Appellant ) applied to be appointed to the promotional post of Associate Professor following a call by the appellant for applications for consideration.
The selection process in the Respondent's case went on for a considerable period of time owing to difficulties in agreeing on her list of 3 nominated referees and she was finally interviewed in November 2002. She was unsuccessful in the process, but the four other male candidates shortlisted along with her from the Spring 2001 call for applications were successful in the process and were appointed as Associate Professors.
She contends that she was discriminated against on the gender ground in terms of S6 (2) of the Act and contrary to S8 of the Act at all stages of the selection process. The Appellant rejects this contention.
The Respondent referred her complaint to the Equality Tribunal in May 2003. As the case had to be reassigned owing to unavailability of the Equality Officer chosen by the Director of the Equality Tribunal, the Equality Tribunal hearings did not conclude until the end of February 2006.
In his decision dated 23rd May 2006, the Equality Officer found that the Appellant discriminated against the Respondent on grounds of gender in terms of S6 (2) of the Act and contrary to S8 of the Act when it failed to appoint her to the position of Associate Professor following the selection process for progression to that post.
The Equality Officer ordered that the Respondent be appointed to the position of Associate Professor with effect from 14th November 2002 and (i) that she be paid the full necessary adjustment in salary and any other benefits attached to the post from the that date, (ii) that the Appellant pay her €10,000 by way of compensation for the distress suffered by her as a result of the discrimination (apart from remuneration), (iii) that the Apellant set out clearly, within six months of the date of this decision, in all documentation concerning appointments, promotions or progressions to all posts within the organisation, a minimum requirement in respect of the gender composition of Interview Panels and (iv) that the Apellant should introduce immediately, if it had not done so already a policy requiring all members of Interview Panels to make notes of interviews. These notes to be be retained by the respondent for a minimum of twelve months following the competition to which they pertain.
On the 27th June 2006, the Apellant appealed against this decision and a Labour Court hearing was held on the 25th April 2007.
Procedural Preliminary Issue:
The Appellant submitted that the Court should defer consideration of this appeal in circumstances where the Respondent has initiated proceedings against the appellant in the High Court, containing the same complaints as those made in the
Equality Proceedings (under High Court record No. 2003/10914P). It was claimed that to decide the appeal could later cause a conflict in the High Court, were the above recorded case to be heard and were there an appeal against the decision of the Court in the Equality Case (to the High Court on a point of law).
It was submitted on behalf of the Respondent that under the jurisdiction conferred upon it by the Act, (S79(6)), the Labour Court was obliged to hear the appeal; that the High Court proceedings were not on all fours with this appeal and that those proceedings were not live and no hearing had began upon them.
It appears to the Court that the provisions of S101(1) of the Act are applicable. This states that:-
“If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of failure to comply with the equal remuneration term or the equality clause, as the case may be”
It is common ground that the hearing of any case at common law the respondent may have taken has not begun. Therefore the Respondent is at liberty to maintain this appeal. The Court dismisses this application.
Substantive Preliminary Issue:
The Appellant submitted that appointments such as the one of Associate Professor in this case do not fall within the ambit of the Act, as they are not competitive appointments and lack the essential competitiveness required to fall within the Act’s ambit.
The Respondent argued that, while in the process, the candidates competed against criteria for appointment and not against each other, nevertheless
Associate Professor commands a higher salary than Senior Lecturer (by between €10,000 - €15,000 p.a.).
Associate Professors are entitled to apply for promotion to Personal Chairs when they have served three years at this level, while Senior Lecturers are not.
Associate Professors are eligible to be members of the Heads and Professors Group, which is the University’s decision-making body.
The case therefore comes clearly within the ambit of S8 (1) of the Act.
It is the view of the Court that the position of Associate Professor is clearly a promotional one carrying tangible benefits and that it therefore falls within the ambit of S8 (1)(d) of the Act. The Court dismisses this preliminary application.
1. The Appellant disputed the Equality Officer's finding that a prima facie case of discrimination had been made out in the instances where the appellant had refused to accept a reference on behalf of the respondent which had a disclaimer attached, but had 9 months earlier within an identical process of promotion, accepted such a reference from a male colleague.
The Appellant submitted that
(a) the reason for the rejection of the reference on behalf of the Respondent was because the appellant had tightened up its procedures in the interim and
2. the Equality Officer's finding that the respondent had been published in a larger number of publications than some of the successful applicants constituted prime facie evidence of discrimination was not in itself indicative of discrimination. The Appellant submitted that the Equality Officer had made this finding purely on the basis of mathematics i.e. that the respondent had more work published than any of the other successful candidates.
(b) there was no evidence that having to submit an alternative reference impacted adversely, or at all, on the Respondent’s application she was ultimately called for interview on the basis of the agreed references. There was no evidence that her failure to be appointed was in any way linked to the requirements regarding her references.
3. the Equality Officer erred in moving directly from a prima facie case to a finding of discrimination.
It stated that the Equality Officer failed to consider all of the relevant facts and the non-competitive nature of the process. The Candidates competed against the criteria, not against each other.
The correct role for the Equality Officer was to determine whether a reasonable interview panel, acting properly and having no regard to gender, could come to the decision it did.
4. the Equality Officer erred in making the orders specified in his decision and in ordering the appointment of the respondent to Associate Professor without any further procedure, interview or assessment by a new interview panel.
5. the decision reached by the Equality Officer undermined the entire assessment process for appointments as Associate Professor and devalued those appointments already made.
1. The Respondent submitted that the appellant applied different rules to the respondent in respect of her nomination of a referee than it had done nine months previously to a male colleague. The reference by Dr B for the two candidates were as follows: -
- his reference for the male candidate in a previous round of promotional interviews for Associate Professor on 24th January 2001 read: -
This reference was accepted.
“I am not a suitable person to assess the international standing of his earlier publications or his overall contribution to the field of Mathematics. However as his current research is in Financial Mathematics, I am in a position to comment on his research in this area”
His reference for the respondent read: -
2. The Respondent stated that in addition to the different criteria employed when assessing her references, there were further difficulties in her initial application, as it took nearly 18 months for her 3 referees to be agreed. Unlike the other applicants, in addition to her difficulties in having Dr. B accepted as a referee she had several other expert referees disallowed as being either in some way associated with her in publications or not “international” enough and, in one case doubts were cast over the academic standing of a referee (who was later accepted).
This reference was not accepted.
“While I am not the most suitable person to assess the international standing of many of her papers, I can certainly comment on them with reference to work in my own field which involves significant statistical analysis”
The Respondent stated that the Appellant had contended before the Equality Officer that the procedures had been “tightened up” in the intervening period. While the Appellant had provided some material to the Equality Officer, that material did not state that a referee was required to be able to assess an application in its entirety and the Equality Officer’s view was that the Appellant
had not “tightened up” its guidelines on the nomination of referees to such an extent that it could legitimately refuse to accept Dr B as a referee for the Respondent.
One referee was disallowed on the basis of her collaborating with him, even though this collaboration had only just been proposed to her whereas at least one other candidate was not only refereed by but also interviewed by an expert in his field with whom he had collaborated and who had publicly thanked him for his contribution.
One referee was disqualified because, although president of an NUI College and one of the leading experts in the field of statistics, with most of his work done abroad, he was not “international” enough.
One referee (later accepted) had doubts cast on whether he was of professorial standard, as he now works in industry.
3. The Respondent stated that the available evidence clearly shows that she (the Respondent) was better qualified than candidate A (one of the other 4 applicants). The respondent has
The respondent submitted that this unwarranted interference with her choice of referees constituted prima facie evidence of discrimination.
She contended that Section 8(4)(b) of the Act prohibits the application or operation of a practice which results or would be likely to result in discrimination and that by its actions the appellant was in breach of Section 8 (4) (b).
The respondent further submitted that at the interview, the 3 internal (local) board members were either members of the Appointments and Promotions Committee (APC) or had knowledge of her problems regarding referees and that this continued the discriminatory treatment into the interview process
4. The Respondent stated that the makeup of her (the Respondents) interview panel was different to those of the 4 male candidates (who were all successful). Each of those candidates was “closely and robustly questioned” on their specialities by external experts in their exact fields (details supplied to the Court).
- two first class honour degrees from UCC
- an MSC from the L.S.E.
- a PhD from London University
- longer lecturing experience than the other candidates
- one of the highest peer –reviewed journal publications in the School of Computing, and substantially higher than candidate A.
She was therefore better qualified all round and not just on a mathematical basis.
There was significant weight and quality in her publications record, far above her comparators (details supplied).
On the basis of prestige weight, quality, quantity and regularity of publication, she was far ahead of candidate A, who was successful.
5. In the case of one member of the interview board (Professor S), the Respondent contends that he was biased against her and her application, based on her previous experiences and dealings with him, where he allegedly allocated a heavy teaching load to her, disparaged her commitment and contribution and demeaned her in other ways.
6. The Respondent also made submissions in relation to the letter which she had received from the President of the University, informing her that she had not been successful in her application In that letter the University stated:
There were 3 external expert examiners in the case of the Respondent who, it is submitted were not sufficiently qualified in her own field to “closely and robustly” question her in her main area of expertise – in fact, only one of the 3 was a statistician and not in her precise area of expertise. Even Professor S, who was responsible for the composition of the external “expert element” of the Board, admitted that the experts were not “spot-on”, but "close enough." The fact remains that given that the external experts led the panels, she was at a major disadvantage, as the only candidate not having direct experts in her main research area.
(a) In relation to the criteria for “Excellence in research and scholarship” the panel was satisfied that she had published at a high level, but the volume should have been higher and it was not always clear what her commitment was to co-authored publications.
In response the Respondent argued that her record spoke for itself – both on volume and quality. She had always made clear what parts of co-authored research she had and had not done. It should be noted that she was questioned by one external examiner on the area of a co-authored publication for which she had not been responsible.
(b) In relation to the criteria for “Excellence in teaching” while this was admitted, her back-up evidence was not strong.
The Respondent argued that her record in this area was acknowledged by staff and students.
7. Contrary to the assertions made by the Appellant in its submission, the Respondent submitted that she:
(c) In relation to the criteria for “High Professional Standing” the Respondent had failed to attract enough research fundings or done enough work in post-graduate research supervision.
The Respondent acknowledges that the area of research was a difficult one for attracting funding, but maintained that she had been very involved in post-graduate research supervision.
- suffered distress (physical and mental)
- was the victim of the appellant failing to adhere to its own or any fair and non-discriminatory procedures, its showing bias and ignoring custom and practice.
The Respondent submitted that the Equality Officer’s decision was correct.
Professor VP, President of the College, gave evidence. He stated that he had chaired the interview panel, but in a hands-off, non-involved way. He explained that the interviews were not competitive, but were to test whether Senior Lecturers were of a standard to be promoted to Associate Professor. The external examiners led the process and took up most of the interview time.
He referred to his own result sheet and brief summaries of the examiner’s view. He confirmed that he would not allow any prejudice or bias (including gender bias) in the panel makeup or in the process. He confirmed that all of the examiners except two had voted “marginally no” on the Respondent’s application. One internal had voted “no” and one external “marginally yes” but changed his vote himself in the interest of unanimity.
The wording of his letter of 14/11/02 informing the Respondent that she had not been successful was agreed following amendments by the panel as a whole.
Under cross examination, the President
- agreed that methods of assessment had changed and were updated
- constantly but not especially as a result of the instant case.
- declined to offer specific views on individual cases but pointed out that panels were not obliged to adopt the views put forward by referees.
- said that referees were assessed for acceptability between the Dean of the Facility and the HR department.
- denied that the external examiners on the panel were not sufficiently expert to question the Respondent.
- stated that the Respondents field was a narrow one and that the three experts covered a broad area around this field.
Professor S, Dean of the Faculty, Head of School of Computing and member of the interview panel gave evidence that he was also a member of the APC and gave views on the acceptability of referees. The final decision on the acceptability of referees was not his, however, but the HR Department’s. The role of the APC was to formulate guidelines for processes and to take applicants from application to interview stages.
- agreed that one expert had put forward the view that the Respondent "would not be promoted in their University", but pointed out that this had no bearing on the situation in DCU or how the panel viewed the respondent’s application.
- could offer no views as to how an assessor accepted for an earlier candidate despite a disclaimer was rejected in the respondent’s case (dispute a disclaimer of a very similar nature).
He stated that some applications could proceed more slowly than others, but, subject to acceptability and raising standards, many applicants eventually reached interview stage. As this process was not competitive, the different rates of progress were not a particular problem. He only knew one of the 3 external examiners, but knew the others by reputation. He confirmed that the external examiners were not, in his words “spot-on” with the Respondent’s area of expertise, but contended that this was the norm. He expressed a view that the external examiners in the respondent’s interview process were, in combination, well qualified to question her on her work.
He stated that he felt the interview panel was a good and competent one, which questioned the Respondent on a wide-ranging basis. It was not known in the case of one of the successful candidates that he had collaborated with a member of the panel, but this in the witness’s view was more a question of expressing thanks for providing information beneficial to the publication, rather than direct collaboration.
He denied any personal bias against the Respondent, that he had disparaged her in any way or that her teaching load was any heavier than the norm. He agreed with the summary of the Respondent’s interview contained in the President’s letter of the 14/11/02.
In cross-examination, Dr S denied that the panel had decided in favour of an applicant less qualified than the Respondent, while rejecting her. It was a combination of factors, as set out in the President’s letter to the Respondent.
While he agreed that only 5 of 47 top academic positions in the University were held by women, Dr S offered the view that this was changing over time.
He also rejected any question of bias or slant in the questioning at interviews. There was a pool of preset questions to be drawn from at will.
He stated that, having cleared the APC hurdle, all candidates began with a “clean sheet” at interview. Candidates were “closely and robustly” questioned in order to get a revealing dialogue going which would draw out the candidate’s abilities to the best advantage. He was only one of 6 members of the panel, all of whom rejected the Respondent’s application.
Professor P (Ex-Vice President of the appellant University and chair of the APC) gave evidence in relation to the difficulties with the Respondent’s referees. He took the view that one had collaborated with the Respondent, one had not a sufficient international dimension, there was a debate about the qualifications of a third (but he was later accepted) and a fourth had declared himself insufficiently qualified to deal with the totality of the Respondent’s application. He realised that this had led to frustration on the Respondent’s part, but, eventually, the APC had opened the gate and allowed the applicant through to interview.
He agreed that it was unusual for a referee to be rejected, but argued that it did happen from time to time in circumstances such as the Respondent’s. It was most unusual and unfortunate for more than one to be rejected. Similarly it was unusual that a candidate would be interviewed by someone who had collaborated or had been credited by them, but not unheard of – the selection of board members was not always forensic in nature.
The Respondent, in her evidence, gave details of her educational achievements and her career to date, including her external placements and lecturing/teaching assignments. She also gave expanded details of her publication history and pointed out that she had been published and well received in some of the world’s leading journals in her field. She had no doubt that she was the best qualified of the candidates under all the headings except the attraction of research findings.
She stated that, at the time of making the application, she had not yet then collaborated with one of her rejected referees. She had collaborated with another 11 years previously. She stated that a rule had been introduced since her case that any collaboration on a publication more than ten years old does not count as collaboration for the purpose of deciding who was a suitable referee.
She stated that Dr B, who was rejected as a referee in her case, had given the exact same qualified view on a candidate 9 months earlier, in a different call for Associate Professors.
She stated that the appellant tried to discredit the qualifications of another referee before accepting him. She also stated that another prospective referee was rejected for not having an “international dimension” despite having done most of his work in the USA.
She further testified that, at interview, she was the only candidate not questioned by experts in her own field. She pointed to the fact that all the other 4 candidates (male) had external experts on their panel whose area of knowledge was, in the Appellants term “spot-on” with the interviewee's speciality.
She stated that on the day of the interview she was unhappy with the panel and with the interview itself, but felt that to object would only delay an already lengthy process further and add to her stress. She should have objected, but could not bring herself to.
She stated that none of the people on the panel were able to properly question her, yet rejected her.The majority of the questions were about computing or algorithms, although she is a statistician specialising in accounting.
She stated that she was treated differently at all stages of the process to all the other (male) candidates. When she appealed the decision using the Appellants internal procedures she had to take an action in the civil courts to obtain a decision on her appeal (which appeal was rejected). Her stage 2 appeal, to the President, has still not been decided.
She stated that three of the other 4 candidates, having got to the grade of Associate Professor in 2002, are now full Professors, and she is still a Senior Lecturer.
In cross-examination, the Respondent:
- pointed out that some Universities rely totally on referees for advancement and do not have interviews at all
The Court, having read the submissions and listened carefully to the evidence, find
- agreed that she was one of 5 candidates interviewed out of 9 (7 Males and 2 Females) who applied.
- felt that she was “singled out” because of the trouble over her referees
- stated that if she had expressed unhappiness with her interview, she felt that might go against her
- argued that the appellant would have had no trouble finding appropriate interview experts both within and outside of Ireland.
- felt DCU did not abide by custom and practice or by its own procedures and treated her differently because they didn’t like her and because of her gender.
that the following facts have been established.
1. The Appellant rejected a referee on behalf of the respondent who was previouslyaccepted in the same circumstances on behalf of a male applicant and whose reference for both candidates was virtually identically in nature. In this regard the Court is satisfied that no evidence was given which showed that the guidelines for referees were tightened up or in any way altered between the the acceptance of the comparators reference and the refusal of the Respondents reference.
2. The Respondent had a greater volume of publications than the comparator candidates. She also had a greater level of academic qualification. She was on paper the most qualified of the interviewees.
3. At least one of the Respondent’s comparators (“A”) was interviewed by an assessor who was personally acquainted with him and who had been a collaborator on “A’s” publications whereas the Respondents referees had been rejected on account of having collaborated with her.
4. Two of the interview board were also on the APC when the Respondent had difficulty in having her referees accepted.
5. The Respondent had three external assessors as opposed to two for her comparators. All of the comparators’ external assessors had expertise in their exact field of expertise. This was not true in respect of the Respondent’s external assessors.
6. Out of a total of 47 top academic posts at the university only 5 are filled by women.
7. Out of a total of 9 applicants for the position 2 were female and neither were sucessful.
8. The Respondent was less successful than the other candidates in attracting research funding.
9. The Court has found no evidence to suggest that there was any personal bias on the part of Professor S against the Respondent.
The Applicable Law:
In cases of alleged discrimination the Court normally must first consider the apportionment of the probative burden as between the parties. This is now governed by s 85A of the Act, as inserted by s 38 of the Equality Act 2004. This Section provides as follows: -
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.
It is settled law that discrimination may involve the application of different rules to comparable situations or the application of the same rules to different situations.
In accepting the reference from Dr B on behalf of a male candidate previously and failing to accept a similar reference from him in the case of the Respondent, the Appellant applied different rules to comparable situations; this of itself may raise an inference of discrimination.
The Court has found as a fact that the Respondent was better qualified on paper than her male comparators. This fact alone, bearing in mind that all the males were appointed and she was not, would be sufficient to shift the evidential burden on to Appellant. See Wallace v South Eastern Health Board [1980, IRLR 193]).
On these two facts coupled with the other findings of fact found by the court the Court is of the view that the Respondent has established facts from which an inference of discrimination on the part of theAppellant may be drawn.
The Probative Burden on the Appellant
Article 2 of Directive 2002/73 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on the grounds of sex. It is well settled that in interpreting national law the Court must do so in light of the wording and purpose a Directive so as to achieve the result envisaged by the Directive (see Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. ECR 4135).
It is therefore necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on her gender.
When the burden of proof shifts to a Respondent there are a number of factors which should be taken into account in deciding if that burden has been discharged. Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities  IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).
Secondly, The requirement to establish that there was no discrimination whatsoever means that the Court must always 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 (see Nevins, Murphy, Flood v Portroe Stevedores  16 ELR 282).
Finally, in Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.
Having carefully considered the submissions, the evidence and the arguments advanced by the Appellant the Court finds that the University has not sufficiently far advanced its case to discharge the probative burden placed upon it . It has not discharged the onus on it to prove that, on the balance of probabilities, the failure to appoint the respondent to the position of Associate Professor was in no way tainted by discrimination, whether conscious or unconscious. Therefore the Court must dismiss the appeal.
The Court upholds the Equality Officer’s Decision and determines as follows:
(1) that the Respondent be appointed to the position of Associate Professor with effect from 14th November 2002, with full retrospection of salary and benefits from that date,
(2) that the Appellant pay to the respondent the sum of €10,000 by way of compensation for the discrimination suffered,
(3) that the Appellant, if it has not already done so, set out clearly, from the date of this Determination, what the minimum requirement should be in respect of the gender composition of interview panels and
(4) that the Appellant immediately(if it has not already done so) introduce a policy obliging all members of interview panels to make contemporaneous notes of interviews, these notes to be retained by the Appellant for a minimum of 12 months thereafter.
The Court so determines.
Signed on behalf of the Labour Court
4th September 2007 ______________________
AH Deputy Chairman
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.