In this case, a Portuguese employee claimed that she was discriminated on the grounds of her gender and race when the employer failed to offer her an interview for an internal position, which she had applied for. The employee commenced employment in April 2011, initially as a claims officer and later as policy management officer.

The employee applied for a claims handler position on the 28th February. Initially, HR advised the employee that it would be better for her to resolve certain difficulties in her current role before moving to another department. However, notwithstanding this advice, she was provided with an application form on the 5th March and the employee returned the completed application on the 8th March. The employee was then required to provide a medical certificate confirming her fitness to engage in the recruitment process (as she had been out sick since the beginning of February) which she did on the 15th March. In the absence of any update, the employee followed up with the employer and was subsequently told on the 22nd March that the role had been filled by a male Portuguese colleague on the 14th March. The employee claimed that the failure to offer her an interview was discriminatory.

The employer argued that the decision not to offer the employee an interview was because she had not provided the medical certificate in time; however, the employee had not been given a deadline for her to provide the certificate. Nor was the employee told that there was a closing date for applications or that interviews had taken place.

Decision

In the first instance, the Adjudication Officer found that the employee had raised an inference of discrimination due to the obscure nature of the selection process and the conflicting messages she received about the viability of her candidacy. The burden then shifted to the employer to rebut the presumption of discrimination.

The Adjudication Officer found that the employer had misled the employee as it advised her that her application was still live pending receipt of her medical certificate and provided her with no time lines. The Adjudication Officer further found that there was a total lack of transparency in relation to the selection process and the criteria used.

The Adjudication Officer found that the employee had been discriminated against on the ground of her race in respect access to a competitive selection process and directed the employer to pay compensation in the sum of €6,000 for the effects of the discrimination.
https://www.workplacerelations.ie/en/cases/2021/march/adj-00024079.html