Readers will be familiar with the concept of equality based claims by unsuccessful job applicants against would be employers. Such claims are often based on age, disability or gender.
The same concepts largely apply to claims made by existing employees who are unsuccessful in internal competitions for promotion.
Last week, it was widely reported that NUI Galway (NUIG) resolved a High Court claim taken by four female lecturers who were unsuccessful in a promotion competition back in 2009. High Court claims in such situations are unusual due to the relative cost, complexity and duration compared to the more usual forum – the Workplace Relations Commission (WRC). The choice of forum in this situation is, most likely, due to the fact that the claim, going back to 2009, would have been out of time at the WRC. However, it was presumably within the longer breach of contract limitation period (6 years), which can be brought to the High Court.
The terms of settlement with the four claimants are confidential. Additionally, the precise basis on which the University decided to resolve such claims is unknown. Like most High Court settlements, factors such as future legal costs, uncertainty of outcome and negative publicity that may arise from a detailed hearing (which is fully open to the public and the media), might potentially have been factors.
Either way, the settlement will draw a line under what has been a challenging few years for the University in the area of gender promotion. The most high profile issue in that regard was the well-publicised decision in 2014 awarding promotion and €70,000 to an unsuccessful female applicant for promotion to Senior Lecturer (Sheehy Skeffington v NUI Galway).
Following that case the University had instigated a review of its promotion processes. This no doubt assisted the University in being awarded the internationally-recognised Athena Swan bronze award earlier this year for its work in eliminating gender bias.
Claims by unsuccessful internal applicants are largely determined by the same legal and best practice principles for external job applicants. However, such internal cases tend to be factually more complex as the applicant for promotion is obviously an existing employee and has a track record with that employer and comparative analysis with successful applicants is often necessary. Such claims are also not subject to the relatively small cap that limits financial awards to non-employees and therefore the potential exposure for employers is far greater. Retrospective appointment with back pay, coupled with compensation can be a particularly serious remedy for employers at the wrong end of such awards.
Speaking generally, in any recruitment or promotion competition, employers should have clear and objective selection / promotion criteria, a uniform approach to each applicant with set questions, a gender balanced selection board with equality training, agreed questions consistently asked of each applicant and a fair and transparent marking system.