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/2009/746
Date issued: 13th November 2014
Page 2 of 22
Keywords: Employment Equality Acts, Gender, Access to Promotion, Indirect
discrimination
Dispute
1.1 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 20082009 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 case
2.1 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 Male (% of male Grade
total
female academic academic
(grade as % of
population)
total
population)
academic
population)
Junior
28 (23%)
10 (9%)
38 (16%)
64 (53%)
42 (37%)
106 (45%)
Senior Lecturer
22 (18%)
34 (30%)
56 (24%)
Professor
3 (3%)
9(8%)
12 (5%)
4 (3%)
20 (17%)
24 (10%)
Lecturer/below
the bar
College
Lecturer/above
the bar
(Personal Chair)
Professor
(Established)
She submits that there is a funnel effect against women once they hit the agegroup where women traditionally have caring responsibilities e.g. childrearing years or caring for elderly parents.
From the Mismeasure of Man quoted in ‘Does Gender Matter?’ Nature Vol. 442 (13 July 2006)
Professor Liz Doherty & Aoife Cooke The Report of the Working Group on Academic Career
Advancement in NUI Galway May 2011 pages 3-4.
1
2
EE/2009/746
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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. 16
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
4
EE/2009/746
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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 SheehySkeffington 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
EE/2009/746
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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
DEC-E2003-035
8
EDA1124.
9
DEC-E2012-010
10
DEE003
7
EE/2009/746
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Page 11 of 22
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 apparently
neutral provision puts persons of a particular gender
(being As or Bs) at a particular disadvantage in
respect of any matter other than remuneration compared
with other employees of their employer.
11
Paragraph 30 ECR I-225 referred to in Rasaq v Campbell Catering Ltd EED048
EDA077
13
EDA0715
14
EDA0712
15
EDA041
12
EE/2009/746
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(b) Where paragraph (a) applies, the employer shall be
treated for the purposes of this Act as discriminating
against each of the persons referred to (including A
or B), unless the provision is objectively justified by
a legitimate aim and the means of achieving that aim
are 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
16
EED0212
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mention this in their guidelines as it applies to men as well as women. NUIG
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 SheehySkeffington’ 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
EE/2009/746
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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-Skeffington’s complaint regarding the 2008-2009
competition is within time.
17
EDA119
EDA077
19
EDA1422
18
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Access to promotion – direct discrimination
4.2 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
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
20
EDA131 This determination by the Labour Court was upheld by Cooke J in the High Court [2013]
IEHC 508
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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 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
21
ibid
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‘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
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
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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.

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
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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
50
11
61
Successful
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
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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
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
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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.
_______________
Orlaith Mannion
Equality Officer
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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