Recruitment and Equality Issues ⚓︎

Two recent cases before the WRC highlight, once again, the potential for equality issues to arise in the context of internal promotion and recruitment processes and the varying levels of compensation that can be awarded where claims are successful.

A Claims Officer v An Insurance Company, ADJ-00024079

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.

Nicola Matthews v Department of Health, ADJ-00025554

Separately, in this case, the employee, a Higher Executive Officer applied for the role of Assistant Principal Officer via an internal competition. Applicants were shortlisted based on pre-determined criteria. The employee's application was not shortlisted and she claimed the she was discriminated against on the grounds of her age.

The employee claimed that her age could be easily calculated from her application form, which required details of each applicant's educational history, including dates of attendance in school and college. The employee claimed this gave rise to unconscious bias in favour of younger candidates. In addition, the employee claimed that the Board did not apply best practice and apply scores in order to determine which candidates to short list and they failed to keep adequate records of the basis for their decision. The employee argued that in the absence of transparent objective criteria being applied to each candidate, it was highly likely that the process was flawed and more prone to unconscious bias and discriminatory outcomes.

The employer denied the allegations and responded that the selection process was fair and that selection was based on the headings included in the application form, which it claimed were objective and honestly applied. The employer also argued that the panel were trained in relation to unconscious bias and discrimination and that the panel was diverse as members were different of ages and gender. The employer further submitted that a number of older candidates had been shortlisted for the role therefore dispelling any suggestion of age discrimination.

Decision ⚓︎

The Adjudication Officer found that the employee had shown that older candidates were less likely to be shortlisted, and noted that the requirement to detail the period of attendance at school or college meant that the age of the candidate could be easily deduced. This, together with the lack of transparency regarding the shortlisting procedure and the one sentence explanation as to why the employee was unsuccessful in her application led the Adjudication Officer to find that the employer had not rebutted the presumption that discrimination had occurred.

In deciding on the appropriate remedy, the Adjudication Officer noted that 26 weeks remuneration was just and equitable. However, unusually, the Adjudication Officer went on to say that as 26 weeks remuneration was less than €40,000 (which is referred to in section 82(4) of the Employment Equality Acts 1998-2015), he went on to make an award in the amount of €40,000 in favour of the employee.

Key Points for Employers ⚓︎

The above decisions highlight the importance of clear and objective selection criteria being applied to candidates in a recruitment process. Employers should ensure that personal details, such as age, disability, family or civil status, are not easily identifiable in the selection process.

It is also vital that employers adequately document the basis for their decision to short list and select successful candidates. Consideration should also be given to requests for feedback from unsuccessful candidates and sufficient feedback should be provided. Failure to maintain records of the decision-making process and to give appropriate feedback may lead to a finding that the process lacks transparency, which ultimately may make it more difficult for an employer to defend a claim of discrimination.