This is a lengthy decision with a relatively complex timeline relating to the employment of the complainant by the respondent on a number of rolling contracts from 1994. Once categorised as a lecturer one has entitlements to attend Faculty meetings and to vote.  The complainant had these entitlements for a period but they were subsequently removed by virtue of subsequent contracts changing her status.  When she was made permanent by virtue of the number of fixed-term contracts and the operation of law she asserts that her role was then reduced to the position of teacher/university teacher.

There is lengthy consideration of the timeliness of the complaint and the Equality Officer ultimately found that the terms of the complainant’s contracts were discriminatory and any conditions of employment which flowed from it contributed to the ongoing discrimination of the complainant.  As the complainant’s role was ‘teacher’ and not lecturer’ at the time of her complaint the Equality Officer found that the complaint was within time and that she had jurisdiction to hear it.

The complainant asserted that she was required to work while on maternity leave which the Equality Officer upheld as discriminatory on the gender ground.  The Equality Officer also accepted that the complainant had a disability and that while the complainant was on sick leave the continuation of her contract was under threat due to her sick leave absence.  She was satisfied the complainant had no option but to sign the new contract and she found that a person without a disability would not have been similarly treated.

The Equality Officer noted the “very significant gender imbalance between male and female lecturers in the Engineering Department”.  She also noted that no other lecturer had their contract changed in similar circumstances.  It is the combination of these two points that ground the claim on the gender ground. She found that the complainant raised an inference of discrimination on the gender and disability grounds in relation to the terms of the contract. The Equality Officer found that the complainant “had to confront and challenge an evolving interpretation of the contract by her superiors over a period of time and this diminished her professional status within the Department”.  It appears that the Equality Officer found that, although the complainant’s contracts changed, the discriminatory terms in the contracts continued each time she was given a new contract but not restored to her previous lecturer status.  The fact that the post was never advertised was also an issue as advertising the position as permanent is a route to being made permanent as a lecturer.

When on 5 December 2008 the complainant was invited to a faculty meeting but could not vote because her conditions of employment had been changed by the teacher contract the Equality Officer was satisfied that this constituted less favourable treatment flowing from the discriminatory contract.

The complainant appealed a decision not to allow her to progress ‘above the bar’ which was successful.  The Equality Officer stated “The complainant was entitled to appeal the Decision and it is significant that two of the most senior people in the Department [whose decision was being appealed] could not accept the appeal outcome. I find it difficult to disassociate these objections from the treatment of the complainant within the Department.” and she upheld the complaints of discrimination on the gender and disability grounds in respect of conditions of employment.

The complainant asserted that on commencement she was not placed on the same point on the incremental scale as a male employee in 2003 although ultimately the Equality Officer did not uphold this aspect of the claim.  Likewise, her claim in respect of the family status ground, in respect of pension losses and income continuance, was not upheld.

The complainant was awarded a year’s salary (€81,000) from a maximum possible award of two years salary.

Why is this case of interest?

The finding that a discriminatory term may flow from contract to contract where the complainant was not restored to her previous position.

It is worth considering whether the decision to issue a contract as teacher rather than lecturer constitutes ongoing discrimination as found (which finding brings the complaint in time) or whether it was a single one-off act with ongoing consequences.  Or indeed whether each new contract was a discreet incident of discrimination.  However, arguably the fact that the term of a contract is discriminatory then discrimination continues for the life of the contract.

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