An applicant was unlawfully subjected to an unpaid and unstructured trial day during recruitment, leading to a finding of disability discrimination and an award of €5000.

The Complainant was a 27-year-old autistic man who applied for a part-time role at the Respondent’s garden centre through a disability employment agency. He alleged that during the recruitment process he was subjected to discrimination on the ground of disability, contrary to the Employment Equality Acts 1998-2015. He maintained that following an interview he reasonably believed he had been offered employment and attended the premises expecting to begin paid work. Instead, he was required to complete a full day of physical labour described retrospectively as a “trial,” without pay, structure, or proper supervision. He stated that the Respondent was aware, or ought to have been aware, of his autism through the agency but made no inquiries and provided no reasonable accommodation. He was given unclear instructions, left isolated, and treated differently from other candidates, none of whom were required to work unpaid. He argued that this treatment caused humiliation, anxiety, and loss of confidence and amounted to less favourable treatment and a failure to provide reasonable accommodation.

The Respondent denied that any discrimination occurred and asserted that the Complainant was treated fairly and respectfully throughout a competitive recruitment process. It maintained that it had no knowledge or notice of the Complainant’s disability at any stage, and therefore no obligation arose to provide reasonable accommodation. The Respondent contended that the Complainant had not performed strongly at the interview and was offered a short unpaid trial as an opportunity to demonstrate his suitability, a practice it argued was common and legitimate in the sector. It submitted that the trial was voluntary, not exploitative, and was intended to benefit the Complainant rather than disadvantage him. The Respondent stated that another candidate with significantly greater experience was selected on objective grounds unrelated to any disability. Any confusion that arose was attributed to miscommunication between the Respondent, its HR consultant, and the agency. The Respondent argued that disappointment at not securing employment did not equate discrimination.

The Adjudicating Officer found that the Complainant had established a prima facie case of discrimination on the disability ground. Greater weight was given to the evidence of the agency representative, whose account that the Respondent had been informed of the Complainant’s autism was considered credible and consistent. The Respondent’s evidence was found to be informal, inconsistent, and lacking clear procedures. The Adjudicator concluded that the Complainant was subjected to less favourable treatment by being the only candidate required to undertake an unpaid and unstructured trial day. This constituted a differential condition of access to employment. The Respondent failed to make reasonable inquiries or adjustments despite being on notice of a disability, thereby breaching its obligation under s.16(3) of the Acts. The recruitment process was found to be poorly managed, lacking transparency and safeguards. While the discrimination was not deliberate, it arose from carelessness and inadequate understanding of equality obligations. The complaint was upheld and €5000 awarded.

Employers should:                

• Ensure that recruitment and selection processes are structured, transparent, and consistently applied to all candidates. Any form of trial, assessment, or practical exercise must be clearly explained in advance, limited in scope, and applied equally. Unpaid work during recruitment is inherently risky and should be avoided.         
   
  
• Note, when an applicant presents through a disability agency or where a disability is disclosed or reasonably inferred, employers should make appropriate inquiries in a sensitive manner. Providing reasonable accommodation does not require medical detail but does require engagement, planning, and flexibility.  
   
  
• Invest in training and written policies on equality and disability inclusion. Reliance on informal practices or assumptions exposes organisations to significant legal and reputational risk. Compliance with equality legislation is not optional and does not depend on intent.

The full case can be found here.