Case Number: DEC-E2012-018- Full Case Report. Equality Tribunal

Docket NumberDEC-E2012-018- Full Case Report
Date01 February 2012
CourtEquality Tribunal
EMPLOYMENT EQUALITY ACTS 1998-2008 Decision - DEC-E2012-018
Barry Sheehan
(Represented by John Curran BL instructed by Charles C. Daly & Co. Solicitors)


University College Cork/National University of Ireland Cork
(Represented by Ronan Daly Jermyn Solicitors)

File Reference: EE/2009/223
Date of Issue: 20 February 2012

1. Dispute

This dispute involves a claim by Mr Barry Sheehan (hereinafter "the complainant") that he was discriminated against by University College Cork/National University of Ireland Cork (hereinafter "the respondent") on grounds of gender within the meaning of sections 6 (1) (a) and 6 (2) (a) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to access to employment or promotion or re-grading contrary to sections 8 (1) (a) or (d) and/or 8 (5) of the Acts when he was not shortlisted for interview for the position of Clinical Education Co-ordinator. The complainant also raised a complaint of victimisation within the meaning of section 74(2) of the Acts.

2. Background

The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 6 April 2009 enclosing a written submission. A written submission was received from the respondent on 2 October 2009. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 10 June 2011. The complainant and respondent made further written submissions on the day of the hearing. Under section 95 (1) (a) of the Acts, I required the respondent to furnish certain documents to me. The hearing was resumed on 26 and 27 September 2011. Supplemental Legal Submissions on behalf of the Complainant were received on 26 September 2011 and on behalf of the respondent on 28 September 2011. Further Supplemental Legal Submissions were received on 4 October 2011.

3. Summary of complainant's case

In September 2008, the respondent advertised on its website and in a national newspaper the permanent full-time position of Clinical Education Coordinator with the Faculty of Law, University College Cork. The salary scale ranged from € 58,948 to € 76,169 depending on qualifications and experience.
On 24 September 2008 the complainant applied for the post.
By letter dated 22 October 2008 he was informed by the respondent's Department of Human Resources that he had not been shortlisted for interview. The following day the complainant sought the reason or reasons why he had not been shortlisted. He was informed by email dated 30 October 2008 that the sole reason why he had not been shortlisted was that his application form showed "insufficient experience relevant to shortlisted candidates".
The background to the competition is as follows.

The previous post-holder, Mr Gerard Murphy, held the post from 2004 until 16 August 2008 when he resigned to follow another career in Dublin. Mr Murphy had given the respondent one month's notice in July 2008. On 16 August 2008, Ms Applebe was appointed as de facto post holder without a competition. On 5 September 2008 the permanent full-time post was advertised. It set out six selection criteria for the post:

1. A postgraduate qualification in law.
2. Demonstrable research capacity and/or publication record an advantage.
3. Organisational skills.
4. Excellent communication skills.
5. Ability to operate in a confidential and sensitive environment.
6. Familiarity with the legal professions and institutions.

On 9 September 2008, Prof. Caroline Fennell, Head of Law Faculty wrote to stakeholders informing them that "this year we have some staff changes...Ms Applebe will fulfill the role of Clinical Education Coordinator. Ms Applebe will be making contact with you shortly and is looking forward to working with you in providing this year's LL.M. criminal justice students with an equally engaging and insightful experience."

The HR Department at the respondent, at the suggestion of the Head of the Law Faculty nominated 4 female and 1 male members to the selection committee, as follows:-

- Prof. Caroline Fennell Head of Law Faculty (chair) (female)
- Dr Mary Donnelly, senior lecturer in Law UCC (female)
- Dr Ciaran McCullagh, senior lecturer in sociology UCC (male)
- Dr Liz Heffernan, at School of Law TCD (female)
- Ms Eilis Caffrey, HR administrator UCC (female).

22 applications were received, 15 female and 7 male.

In accordance with UCC's own procedures, the internal members (i.e. excluding Dr Heffernan) met to shortlist the applications on 16 October 2008.

The following additional selection criteria were added to those advertised at the short-listing meeting:

"Lecturing examining and supervision of clinical programmes. Ability to supervise certain aspects of students' work at both undergraduate and postgraduate level."

7 candidates were shortlisted, 5 female (including Ms Applebe) and 2 male. The complainant was not shortlisted. The report of the short-listing committee gave all 14 unsuccessful candidates the same reason for not being shortlisted i.e. "insufficient experience relevant to shortlisted candidates." No marks were recorded for the candidates at short-listing.

On 22 October 2008 the respondent informed the complainant that he had not been shortlisted for the position. The following day the complainant wrote to the respondent looking for reasons and seeking information concerning the applicable appeal procedure. On the same day, HR wrote to the Head of the Law Faculty and other referees seeking a reference for Ms Applebe. The Head of the Faculty (and chair of the selection board) submitted a glowing reference stating that she had "no hesitation in giving her the highest possible recommendation for appointment to the permanent post of Clinical Education Coordinator." Her other referees gave her very favourable references also.

On 24 October 2008, Ms Applebe was listed on the Law Faculty website as Clinical Education Coordinator, although interviews of the shortlisted candidates had not yet taken place. Two days later this was taken down and the name of the previous post holder, Mr Murphy was re-listed. On 3 November 2008, Ms Applebe was again listed on the website as Clinical Education Coordinator although interviews had still not taken place.

The respondent informed the complainant on 30 October 2008 of the reason he was not shortlisted i.e. "insufficient experience relevant to shortlisted candidates." He was also told that there was no appeal mechanism after short-listing. The selection committee decision was final.

On 7 November 2008 the short-list was interviewed. The result of the interview process was as follows:
Ranking Score Gender
1st Ms Applebe 91 Female
2nd 90 Male
3rd 67 Female
4th 63 Female
5th 62 Female
Unappointable Male
Unappointable Female

The interview board recommended Ms Applebe's appointment as "the candidate [who] demonstrated the closest fit particularly in the area of providing administrative and academic support to the Clinical Programmes in the undergraduate and postgraduate law programmes."

On 11 November 2008 HR wrote to Ms Applebe confirming her appointment.

The complainant argues that the respondent breached its own recruitment and equality guidelines in the following respects:

1. By failing to achieve gender balance on the selection and interview board.
2. By adding supplementary selection criteria which conferred an unfair advantage to the successful candidate.
3. By failing to establish and maintain appropriate mechanisms whereby job applicants who feel they have been unfairly treated can have their complaints investigated.

The complainant alleges that the respondent has a practice of appointing females to posts in preference to males. He points to the following data as evidence:

In the 10 years until 1 March 2009, 83% of all appointees to administrative/non-academic posts in the Department of Law were female and 17% were male. As of July 2009, 100% of administrative/non-academic posts, including that of Clinical Education Coordinator, were female. As of June 2011, in spite of 3 new posts being created in the interim, the situation was unchanged.

The complainant claims that there was no urgency which required the appointment of Ms Applebe on an interim basis in August 2008. This gave her an unfair advantage in the competition for the permanent post. The post could have been kept open until the outcome of the selection process. The complainant claims that he was better qualified than most if not all of those who were shortlisted because of his demonstrable knowledge of the Irish legal system and ability to network with solicitor and barrister colleagues. As well as his practice and teaching experience, he is the editor of the consolidated District Court rules. Three of those shortlisted were not Irish or experienced in Irish law. Others were not practising lawyers. The...

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