Background:

The Complainant applied for a staff position with the Respondent and placed second on the panel for such appointment. The Complainant alleged that her narrowly placing second to a candidate which was younger and had no formal experience, compared with the Complainant’s eight years of experience, constituted unconscious bias and was discrimination on the basis of age. In addition, the Complainant alleged that she was subjected to discriminatory treatment on the basis of disability by being obliged to undergo an occupational health assessment in order to be placed on the panel of candidates for the role in question. The Complainant specifically objected to the obligation to complete an online medical questionnaire as part of this process, as it would oblige her to disclose information which was subject to a non-disclosure agreement made under the Residential Institutions Redress Act 2002.

In response, the Respondent said the allegation of discrimination on the basis of age was an assumption without a factual basis. The Respondent said it had a rigorous competition process based on a rubric which it reviewed with the Respondent carefully, and did everything it could to provide the Complainant opportunities, even convincing the Complainant to rescind her withdrawal from the process on one occasion. Regarding the medical evaluation, the Respondent said this process was a confidential one and could be modified to meet the needs of the Complainant if required.

Outcome:

The Adjudication Officer found that the Respondent’s policies and procedures were largely strong and well-based, acknowledging that even the best-planned processes are imperfect. However, they also found that the lack of an independent person involved in the process meant that the Respondent could not rebut the presumption of discrimination on the basis of age which arose in the case, and therefore that complaint was well-founded. The complaint of discrimination on the basis of disability, however, was found not well-founded. The Adjudication Officer did not provide for compensation in their award and only said that the Respondent must consider creating a policy for those who have experienced trauma.

Practical Guidance for Employers:

The involvement of an independent person in a recruitment and selection process, particularly in the public sector, is advisable to ensure such a process is protected against an allegation of discrimination.

The full case is here: https://www.workplacerelations.ie/en/cases/2024/march/adj-00045986.html