Eleanor O'Higgins v Labour Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 08 November 2013
• Neutral Citation: [2013] IEHC 508
• Docket Number: [No. 21 MCA/2013]
• Court: High Court
• Date: 08 November 2013

[2013] IEHC 508

THE HIGH COURT

[No. 21 MCA/2013]

O'Higgins v Labour Court & University College Dublin

MR JUSTICE COOKE

APPROVED TEXT

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 90(1) OF THE EMPLOYMENT EQUALITY ACTS 1998 - 2011

BETWEEN

ELEANOR O'HIGGINS

APPELLANT

AND

THE LABOUR COURT AND UNIVERSITY COLLEGE DUBLIN

RESPONDENTS

EMPLOYMENT EQUALITY ACT 1998 S85A

EMPLOYMENT EQUALITY ACT 1998 S90(1)

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577 2005/44/9152 2005 IESC 40

NORTH WESTERN HEALTH BOARD v MARTYN 1987 IR 565

EMPLOYMENT

Discrimination

Appeal on point of law against determination of Labour Court - Discrimination on grounds of sex - Application for promotion - Prima facie case of discrimination - Onus of proving absence of discrimination on respondent - Whether failure by Labour Court to carefully evaluate evidence tendered by respondent to rebut inference of discrimination - National University of Ireland Cork v Ahern & Ors [2005] IESC 40, [2005] 2 IR 577 and North Western Health Board v Martyn [1987] IR 565 considered - Employment Equality Act 1998 (No 21), ss 85 and 90 - Appeal rejected (2013/21/MCA - Cooke J - 8/11/2013) [2013] IEHC 508

O'Higgins v Labour Court

This case concerned an appeal against the decision of the Labour Court made on 11th January, 2013.

The appellant, Dr. O”Higgins, previously held a tenured Senior Lecturer position in the School of Law and Business at University College Dublin. She applied for promotion to Professor in 2007 and was unsuccessful. She claimed that the failure of her employer to promote her was unlawfully premised on sexual discrimination contrary to Equality Employment Legislation.

The application for promotion to Professor wasn”t competitive, but was based on a scheme outlined in the University”s ‘Promotion to Professor Internal Promotions Pathway 4B’ document. The decisions under this scheme were made by the University Committee for Academic Appointments, Tenure and Promotions (the Committee). The applications for promotion to Professor in 2007 were overseen by a Committee comprising twelve men and one woman. In the round of promotions, nineteen applications were made, four being made my women and fifteen by men. Eight promotions were awarded, two to women, and six to men.

The appellant was informed that a lack of PhD supervision, a lack of evidence of academic leadership in the University, limited funding, a lack of evidence of substantial high-impact publication and limited evidence of management or direction of the University contributed to the decision not to promote her to Professor. Unsatisfied with the feedback provided, the appellant”s case came before an Equality Officer who dismissed it on the basis that discrimination was not made out. She then appealed to the Labour Court. Noting independent evidence that she met the criteria, the gender composition of the Committee giving rise to ‘considerable disquiet’ and the absence of any minutes or notes of the Committee decisions, the Labour Court held that the appellant had a prima facie case of discrimination. However, after reviewing the evidence of the respondent, the Labour Court held that the respondent rebutted the presumption of discrimination—and found that the decision not to promote the appellant was unrelated to her gender. The appellant appealed to this court.

The core of the appellant”s argument was that after the determination that she had a prima facie case of discrimination; the Labour Court was obliged to engage in a ‘more detailed assessment’ of the material that was before the Committee, and to make specific findings of fact with reference to that evidence. In failing to do this, it was asserted that the Labour Court had erred in law.

Held by Cooke J., the role of the Labour Court was simply to determine whether the basis for the rejection of promotion to Professor was sexual discrimination. The Labour Court was found to have engaged extensively with the evidence presented to it and to have identified why there was no discrimination in finding the evidence of the respondents to be ‘comprehensive, truthful and honest’. The Labour Court determined that the application was decided "solely by reference to the published criteria". In making this decision, the Labour Court was held to not have erred in law and to have correctly dealt with the issue of sexual discrimination.

The appeal was therefore dismissed.

Mr. Justice Cooke

1 This is an appeal brought by Dr. O'Higgins against a Determination of the Labour Court made on 11^th January, 2013, on her claim under the above Acts that a 2007 decision by her employer, the second named respondent ("the University"), not to promote her to the status of professor was unlawful in that it was vitiated by discrimination on grounds of her sex contrary to the provisions of the Employment Equality legislation. The Labour Court has been named as a respondent in the proceedings but has taken no part, the opposition having been undertaken by the University.

2 The appellant was previously the holder of a tenured post as a Senior Lecturer in what is now the School of Business and Law in the University, her duties being discharged in what was formerly the Commerce Faculty of the University College and are thus on the business side of the now consolidated school. She has since retired from her tenured post but continues to teach under a fixed term contract.

3 It is important to underline at the outset that the issues which arise in this appeal concern an application for promotion to the grade or rank of professor within the University under a scheme which was not competitive with other applicants as might be the case under a procedure for the appointment of an single candidate to a particular professorship or for a selection of candidates to fulfil a limited number of posts. It was essentially a promotional exercise by reference to a number of defined and objective criteria and there was no limit upon the number of applicants that might receive promotion.

4 It appears that in the University there were two "pathways" to such promotions. In the one which is involved in this appeal, a scheme exists under which promotion rounds are held periodically in which senior academics can apply to be promoted to the rank of professor. That scheme is outlined in a document called "Promotion to Professor Internal Promotions Pathway 4B". The second pathway is one called "Competitive Retention Pathway" under which senior academics who are effectively threatening to move to another institution can be promoted to a professorship with a view to retaining their services.

5 The procedures and decisions under these schemes are in the hands of the University Committee for Academic Appointments, Tenure and Promotions which has been referred to by the first named respondent as the "UCAATP", but which will be described in this judgment as "the Committee". This body is comprised of members who are partly elected within the University and partly appointed by the President of the University. The President and the Registrar are ex-officio members. For the purposes of the 2007 promotions round under the scheme in which the appellant's application was made, the Committee was comprised of twelve men and one woman.

6 Although not immediately relevant to the legal issues now before this Court, the background to the hearing before the Labour Court included the fact that she had previously been an applicant for promotion to professorship in 2006 but had been refused as ineligible because at that time it was a pre-condition that an applicant had held the position of associate professor for at least five years. She had subsequently applied for associate professor status but was unsuccessful. This pre-condition had been abolished for the round of promotions held in 2007.

7 In her application for the 2007 round, the applicant was supported by the recommendation from her own School of Business and Law and her own referee. As the Labour Court's impugned Determination records, external assessors appointed by the University to review her application "also reported favourably on her eligibility for promotion". The Determination also records that, in accordance with standard practice, those assessors were asked to indicate if, in their opinion, the appellant would be eligible to the promotion to professorship grade in their own university and each had given an affirmative reply.

8 There were nineteen applicants for promotion in the 2007 round of which four were women and fifteen were men. In the result, eight promotions were granted of which two were women and six were men.

9 The conditions or criteria by reference to which the Committee conducted the promotion procedure were set out in the "Pathway 4B" document referred to above as follows:-

"Applicants for promotion to professor are expected to have an international reputation. Professors will have achieved an internationally recognised leadership position in their disciplines from pioneering inquiry into important issues in that discipline, evidenced through sustained high-level activity. Assessment of promotion will be based primarily on the research and scholarship and academic leadership criteria. In exceptional circumstances, promotion may be based on the teaching and learning criterion reflecting internationally recognised peer-reviewed achievement in the applicant's scholarship of teaching and learning and/or pedagogical innovation within the discipline."

10 Following the refusal of her application, the appellant was given the following reasons as set out in the report of the Committee:-

· - Lack of evidence of a substantial volume of publications in high-impact, high-quality referred research publications;

· - Limited evidence of contribution to the management...