A recent decision before the Workplace Relations Commission (WRC) highlights the importance of following proper procedures and maintaining appropriate records during the recruitment process, in order to be in a position to robustly defend a claim for discrimination in relation to a candidate's application for a job.

Background ⚓︎

The Complainant in this case applied for the position of Employment and Training Support Worker. The Complainant was unsuccessful in his application and alleged that he had been discriminated on the grounds of disability. The Respondent denied the allegation and argued that it was simply a case that there were several excellent candidates who presented for the role and had the necessary experience in all of the required areas.

The Complainant's Argument ⚓︎

The Complainant claimed that the application process was weighted against persons with disabilities. He explained how he was diagnosed with Dyslexia, Asperger's Syndrome, Attention Deficit Disorder and Depression. He explained how his CV stated that he was "both Dyslexic and intellectually gifted".

In terms of qualifications and experience, the Claimant was a qualified carpenter, had graduated with a Higher Certificate in Business from the National College of Ireland and a Bachelor of Business Studies (Honours) Degree from Carlow Institute of Technology. He had also gained a Train the Trainer qualification in 2014, graduated with a Certificate in Autism Studies from University College Cork in 2015 and the same year he also qualified as a Patient and Manual Handling Instructor. He is registered with the Teaching Council of Ireland as a Further Education Teacher, graduating from the National College of Ireland in 2018 with a Post Graduate Diploma in Arts in Learning and Teaching (Further Education).

The Complainant submitted his application for the position on the 3rd October 2018 and received a letter from the Respondent on the 16th October 2018, notifying him that his application for the role had been unsuccessful "due to the high volume of applicants".

As the Complainant had over 13 years' experience as a Community Employment Supervisor, coupled with his academic qualifications, he was at a loss as to why he had not been shortlisted for an interview and sought feedback from the Respondent. The Complainant submitted a Data Access Request to obtain his marking sheet, which he received on the 26th November 2018. Having reviewed the marking sheet, the Complainant claimed that he was scored on criteria that was materially different to those that had been provided to him, by way of the Job Advertisement and Job Description. The Complainant further argued that the successful candidate scored higher than him under two criteria that he would consider to be subjective in nature.

The Respondent's position ⚓︎

The Respondent denied that the Complainant was discriminated against on the grounds of disability as alleged and explained that it actively works to promote awareness around equality and campaigns on behalf of marginalised groups. It also explained that it facilitates and manages programmes aimed at 15 to 29 year olds in receipt of disability allowances who are experiencing mental health difficulties and mild learning difficulties.

The Respondent confirmed that a matrix was used to shortlist successful applicants, based on the applications submitted. The marking exercise was based on categories of material relevant to the role and the applicants were given a pass or fail in each relevant category based on the information they had submitted. To qualify for interview, an applicant was required to pass all of the five sections. The Complainant was unsuccessful in two of the five categories, namely that he did not have experience working with the unemployed or working with the disadvantaged. The Complainant received the same score as three other applicants. Four applicants scored less than the Complainant and were also not called for interview.

The Respondent argued that the Complainant had not discharged the burden of proof required by section 85A of the Employment Equality Acts 1998-2015 ("the Acts"). It submitted that the Complainant had merely speculated on the possibility of what had occurred.

The Law ⚓︎

Section 8(1) (a) of the Acts prohibits discrimination of prospective employees in relation to access of employment based on any of the nine discriminatory grounds, including disability.

Section 85A of the Acts places the burden of proof on the Complainant and he must establish, in the first instance, facts from which discrimination may be inferred. Only where the Complainant establishes a prima facie case, will the onus shift to the Respondent to rebut the inference of discrimination raised.

Findings ⚓︎

In her findings, the Adjudication Officer noted that unlawful discrimination in any circumstances and particularly in relation to a recruitment process, is rarely overt and may not even be intentional but merely based on an assumption that a candidate would not have fitted into a particular role.

The fact that the Respondent had knowledge of the Complainant's disability, was not in itself, the Adjudication Officer found, enough to constitute a prima facie case of discrimination. The Complainant must establish a factual matrix from which it could be inferred that discrimination had occurred on the balance of probabilities.

The Adjudication Officer referred to the Labour Court decision in Client Logic t/a UCAL v Kulwant Gill EDA 0817 where it held that

"In cases alleging infringement of equality law in the filling of posts, it is not the function of the Court to substitute its views on the relevant merits of candidates for those of the designated decision makers. Rather, its role is to ensure that the section process is not tainted by unlawful discrimination. Consequently the Court will not look behind a decision unless there is clear evidence of unfairness in the section process or manifest irrationality in the result".

Ultimately, the Adjudication Officer was satisfied that there was no clear evidence of unfairness or manifest irrationality in relation to the decision not to invite the Complainant for interview. The Adjudication Officer found that while the Complainant's frustration and disappointment at his unsuccessful application was understandable, she was satisfied that the scoring system was fair and applied equally to all candidates who applied for the role and the Complainant was not treated any less favourably than any of the other candidates.

Take away points for employers ⚓︎

This decision reinforces the position that an Adjudication Officer or the Labour Court will not substitute their own view in relation to the suitability of a particular candidate for a role, unless there is clear evidence of unfairness or where the decision is irrational.

However, in order to be in a position to robustly defend a claim of discrimination by a disgruntled unsuccessful candidate, it is essential to have a clear and objective scorning mechanism in place at the outset of the recruitment process. In addition, the scoring criteria should be applied consistently to all candidates and clear records should be maintained in relation to the scores applied.
https://www.workplacerelations.ie/en/cases/2020/february/adj-00020498.html