Today’s article looks at Eleanor O'Higgins v Labour Court and University College Dublin [2013] IEHC 508, a recent High Court case concerning Employment Equality legislation: 

* CASE NAME AND REFERENCE: Eleanor O'Higgins v Labour Court and University College Dublin [2013] IEHC 508 
* COURT/TRIBUNAL: High Court. 
* JURISDICTION: Employment Equality Acts 1998-2011 
* SUBJECT MATTER: Gender Equality – the Men v. Women debate

FACTS 

This was an appeal brought by Dr. O’Higgins in respect of a determination of the Labour Court wherein it was ruled that the decision taken by University College Dublin not to promote Dr. O’Higgins to the status of Professor was lawful and did not fall foul of the Employment Equality Legislation on grounds of her sex. 

Dr. O’Higgins was a Senior Lecturer in the School of Business and Law in UCD. She applied for a promotion to the rank of Professor under a non-competitive scheme. The scheme was essentially a promotional exercise by reference to a number of defined and objective criteria. There was no limit to the number of applicants to receive the promotion. Promotions were made by a University Committee which comprised of 12 men and 1 woman. Dr. O’Higgins was not promoted. There were 8 other promotions, 6 men and 2 women. 

Dr O’Higgins initiated her claim before the Equality Tribunal who dismissed the claim on the basis that a prima facie case of discrimination had not been established. She appealed to the Labour Court. In the first instance, the Labour Court found that Dr. O’Higgins established a prima facie case. Of note, the Labour Court identified 3 areas which caused concern: 

1. There was independent evidence that she met the criteria 
2. The gender composition of the Committee was harmful in effect 
3. No notes were taken by the Committee of the deliberations arriving at its decision. 

The onus of proof thus shifted to the University. The Labour Court went on to find that the evidence adduced on behalf of the University was comprehensive concerning the process and underlying rationale for its decision. The Labour Court also took into account the fact that of the 19 applicants, 15 were men and 4 women (21% women). It transpired that 8 applicants were successful, 2 of whom were women (25%). The Labour Court found that the statistics were inconsistent with the conclusion that the Committee was subconsciously disposed to appoint men in preference to women. 

DETERMINATION 

Dr. O’Higgins appealed to the High Court on a point of law asserting that the Labour Court erred in failing to carefully evaluate the evidence tendered by the University to explain the decision not to promote Ms. O’Higgins. Cooke J. in the High Court found that the Committee was not incapable of reaching an unbiased judgement merely because it was male dominated. He also said that the merits of Dr. O’Higgins’ application and the alleged failure by the Committee to understand Dr. O’Higgins’ area of expertise did not amount to proof that the rejection of her application was necessarily attributable to gender discrimination. 

Cooke J. concluded that the Labour Court properly took account of all material considerations and the decision of the Committee had not been tainted by gender discrimination whether overt or subconscious. Dr. O’Higgins’ appeal was rejected. 

LEGAL REVIEW 

The Judgement is instructive not only in the context of appeals on a point of law from the Labour Court, but also regarding the decision making process undertaken by the University Committee. The same principles would apply to interview panels and the judgment highlights the importance of clear note taking, the preference of gender balance on the interview panels and the importance of objective, step by step thought process when reaching a decision and making appointments.