The existence of a legal maze in the day-to-day operations of the Human Resources (H.R.) function is one the most significant changes in the people management process over the past 40 years. With a resurgence in the jobs market, this maze often manifests itself in the legal. These include John Halligan, Minister of State at the Department for Training & Skills, Tennis Ireland, Kerry Co. Co., State body SOLAS, the Irish Prison Service, UCD and UCG. In the latter case, UCG was ordered to promote the claimant, pay her €70,000 and to review its appointments system – before reaching settlements with another 4 college staff in similar circumstances. Indeed, it is chastening to find that the aforementioned join a long and illustrious list that has fallen foul of the law in this area, including Ryanair, the Coombe and Mater Hospitals, Independent Newspapers, the Health Service Executive, the Medical Council, VEC’s, Local Authorities and Trinity College.

Equality

The bottom line is that statute law applies to an employer’s right to hire as he/she pleases in two principal areas: equality and freedom of information/data protection. Under the Employment Equality Acts 1998-2015, direct and indirect discrimination under any of the 9 grounds (i.e. gender, civil status, family status, age, race, religion, disability, sexual orientation and membership of the Traveller community) is prohibited. This prohibition extends to recruitment advertising, by an employment agency on behalf of an employer, in the arrangements which an employer makes to recruit new employees and in the opportunities for training, experience and promotion offered by the employer to new and existing staff. Should the claimant establish a prima facie case, if an employer is found to have discriminated against an external candidate, awards are capped at €13,000. However, in internal candidate cases the cap applied is 2 years’ remuneration (n.b. it’s uncapped if the discrimination relates to gender, incl. pregnancy-related discrimination).

Information Freedom & Data Protection

The Freedom of Information Act became operative in Ireland in April 1998. Under the Act, every person has the legal right to access official records held by public bodies, to personal information held on them, to be corrected or updated where it is incomplete, incorrect or misleading and to be given reasons for decisions taken by public bodies which affect them. Accordingly, the 1997 and 2003 the Freedom of Information Act gives job applicants: ‘the right to be given reasons for decisions taken by public bodies that affect them’. In a manner equivalent to the equality enactments, arising from cases already brought under the Act, the Information Commissioner has determined that shortlisting boards and interviewers must make the notes in respect of unsuccessful applicants or interviewees available to them, provide access to the criteria and marking schemes used by the board and advise interviewees of their order of merit and actual marks. Just last year, the Commissioner explained that under Section 10 of the enactment a statement of reasons must be provided which adequately explains why the prospective employer acted as it did – though this obligation is qualified, with ‘the public interest’ outweighing ‘the right to privacy’.  Such access now effectively extends to private sector employers via the provisions of the Data Protection Acts 1988 and 2003. Under these enactments, access to computerised and manual records respectively is facilitated. The implications for recruitment and selection practices and procedures may not be self-evident. However, the bottom line is that those involved in the recruitment and selection process need to be mindful of the fact that any documentation or interview notes relating to selection decisions taken, are open to discovery under legislation.

The Legal Maze

To the surprise of some employers, the recruitment and selection legal maze starts long before the interview process begins, and ends well after it has been completed. For example, as far back as the late 1980s, both Trinity College, Dublin and the Medical Council were found to have discriminated on the grounds of gender, as they sought information in respect of the applicants’ marital status and children prior to interview. Though the Council argued that this information was required for superannuation purposes, the Equality Officer noted that it would only be necessary to secure such information from successful candidates. In the Trinity College case the most relevant conclusion was that prejudice lies not so much in seeking the information but in making it available to the interviewers (i.e. it could legitimately be used as part of a ‘Positive Action’ audit – so long as those with responsibility for shortlisting and selection decisions do not have sight of it). Such a fate befell Kerry County Council this year, when the Labour Court fined them €5,000 for including a candidate’s ‘declaration of disability’’ in the information pack that was passed to the interview panel – prompting the question: ‘I see you were in Rehab – how did it go for you?’.

Person Specification

Even taking the selection process back a step further - to the Person Specification phase - it is notable that in 2003 the Department of Finance found itself at the wrong end of an Equality Officer’s determination of indirect discrimination against young workers under the aforementioned equality law. The claimant was adjudged to have been discriminated against, as he was unable to compete for promotion because of a 5 years’ service requirement. Conversely, in the following year, an Equality Officer adjudged that the Accountancy Connections agency had indirectly discriminated by imposing a maximum of 3 years’ post-qualification experience into the Person Specification. Thereafter, Lidl was ordered to pay €5,000 when they advertised for a graduate with no more than 2/3 years’ experience Significantly, for those involved in the preparation of Job Analysis documentation, it is apparent that generalisations equating length of experience with skill levels are best not used to justify indirect age discrimination.

Moving forward to the job advertisement, one of the more high profile cases to feature did so in 2002, when Ryanair came unstuck under the same Act due to its ageist recruitment advert, which sought ‘young’ and ‘dynamic’ applicants. Ageism featured again in a case earlier this year, when State body Solas paid out €20,000 in the wake of an interview where the candidate was asked: ‘Do you think at this stage that you should be taking it easier?’.

At (what is normally) the far end of the recruitment and selection process, it is notable that in 2001 Iarnrod Eireann found itself making a settlement to a deaf job applicant, who was refused a position after failing a pre-employment medical. Ironically, its sister company – Bus Eireann - found itself in a similar predicament subsequently (in 2003), when having accepted the claimant for the job, he was (incorrectly) adjudged to have failed the subsequent medical examination. At the same end of the process, in 2006 the ICE Group was adjudged to be discriminatory on the grounds of race under the same law for its policy on reference requests. Of course, on top of this, the bitter legal experience of some employers now clearly indicates that when it comes to references, nominated referees should never give a reference, written or oral, which cannot be supported with factual evidence. Failure to do so may well bring a legal boomerang back to haunt the scribe.

Pre-Interview Potholes

Another legal complication that arose in advance of the actual interview came to pass in 2000 when the Equality Tribunal agreed that CERT’s request that female interviewees wear a standard uniform to attend at interview constituted gender discrimination, exacerbated by the fact that in the course of the hearing the uniform itself was described as ‘both demeaning and subservient’. Then in 2006, the Dept. of Justice, Equality and Law Reform was exposed for discriminating on the grounds of disability, for what the Labour Court described as their failure to grant a ‘reasonable deferment of the interview’ to a civil servant hospitalised with a stomach complaint.

Still at the pre-interview stage, in 2002 the East Coast Areas Health Board was exposed under the aforementioned equality Act for failing to provide wheelchair access to their interview venue. And on a similar theme, in 2006 Siemens Business Services was adjudged by an Equality Officer to have discriminated on grounds of disability, having treated a job applicant less favourably than other candidates by failing to provide him with a selection test in an appropriate manner, given that he suffered from a visual impairment and had sought the test in advance in an electronic format.

The Interview: Legal Lessons

The vulnerability of selection interview practices to legal challenge was aptly summarised by the Labour Court in a finding against the Revenue Commissioners as far back as 1987, when it concluded that ‘it was clearly a very subjective selection process’, which ‘could easily have facilitated biased judgement’. The bottom line is that if an inference of discrimination is to be rebutted, it will help if the process can be shown to be fair, objective, transparent or quantifiable.

Whilst one may be forgiven for thinking that we’ve moved on from the blatant sex discrimination practices - like that adjudged to be in operation at the Coombe Hospital back in 1985, when a female candidate was asked about her date of marriage and capacity to juggle work and family commitments - nothing could be further from the truth. Beyond the recent high profile case at U.C.G., amongst the most notorious of all such cases arose in 2000, when the Labour Court awarded €50,000 against the Mater and Rotunda Hospitals for inappropriate comments and questions posed to a female candidate at interview, together with the absence of formally agreed assessment criteria and the absence of interview notes.

Such discrimination re-surfaced in 2002 in two schools operating under the auspices of the Dept. of Education and Science. Both the claimant and the successful candidate were asked about family responsibilities in relation to a requirement for flexible working hours. Despite appointing the more suitable candidate, the Labour Court accepted the claimant’s view that the impact of the question was greater on the female than on the successful male candidate, and that the relevant information could have been elicited without reference to family commitments. Two years later a (then) record award of €117,000, plus €10,000 for stress suffered, was made by an Equality Officer against St. Anthony’s School, Kilcoole, where the interviewee was questioned about ‘her suitability to be appointed to the post (of School Principal) in the light of her gender’. By 2017 this malpractice was still to be found in the highest echelons, when Minister John Halligan fell foul of a Workplace Relations Commission (W.R.C.) adjudication for asking an interviewee ‘are you a married woman? Do you have children? How old are your children?’.

Assessment Criteria Notes

On the crucial matter of the assessment criteria and the interviewers’ supporting notes, Shades of this determination had already arisen in 2003, when an Equality Officer chided the Dept. of Health and Children - who were ordered to pay €40,000 for age discrimination - due to its lack of proper selection assessment criteria, alongside a failure to retain interview notes. In a similar vein, in 2005, the Equality Tribunal adjudged that in the case of Co. Monaghan V.E.C., their marking scheme was unstructured, whilst their failure to retain interview notes was unacceptable.

The ‘lost notes’ issue also arose in the same year, when Ocean Manpower Ltd. – which provides casual labour for Dublin Port – were found by the Labour Court to have discriminated on the grounds of age, as their process was subjective and included a failure to apply formal assessment criteria. ‘Inadequate notes’ of interviews also exposed Superquinn in 2001, when an Equality Officer presided over the very first case to be won on the marital and family status grounds under the aforementioned 1998 Act. Subsequently, in 2007 Norwich Union came unstuck before the Equality Tribunal in response to a charge of gender discrimination. A significant contributory factor to their undoing was the ‘mismatch between the competencies in the role profile form and assessment criteria applied in practice’. Nor did it help that one of the marking sheets had gone missing.

In the previous year, Dublin City University fell foul of an Equality Officer’s finding for its failure to retain interview notes and to make provision for gender balance on the panel of interviewers. This gender balance issue also contributed to a finding against both Co. Cork and Co. Donegal V.E.C.s in 2000 and 2002 respectively, on the basis of indirect sex discrimination. The latter V.E.C. also erred in their usage of the ‘service’ criterion as a tiebreaker between a male and female interviewee as - the Labour Court adjudged - in opting for this factor it was more likely to be to the advantage of the man.

Of course whilst it’s one thing to have selection assessment criteria, it’s another to ensure that they are appropriate criteria and are being correctly applied. For example, in 2003 the Daughters of Charity were ordered to pay a claimant €70,000 and to implement fair and transparent selection procedures, after they had failed to give any recognition to the female candidate’s experience. Then in the following year, Co. Clare V.E.C. found itself on the wrong side of a High Court decision, as one of its interview boards did not correctly apply the marking scheme. One of the more distressing practices in this area surfaced in 2004, when the South Eastern Health Board were adjudged by the Labour Court to have manipulated a marking scheme prior to interview in favour of their preferred applicant - and to have subsequently unfairly marked the complainant - costing them an award of €45,000. Whilst just last year, Tennis Ireland came unstuck at the W.R.C. for the inconsistent application of the chosen criteria in the appointment of their new Chief Executive.

After the Interview

Moving to the post-interview analysis phase, one of the most consequential determinations to emerge in this sensitive area befell Nenagh Urban District Council in 1992. The interview panel constructed an interviewee assessment/scoring sheet in advance of the interviews (for a swimming pool superintendent). However, following the interviews, the board held a discussion during which each member indicated a preference for Mr. X. It was only subsequent to this discussion that the board proceeded to allocate marks in respect of the aforementioned assessment/scoring sheet. Both Equality Officer and the Labour Court found against the Council, drawing attention to their marking system and the implementation thereof, together with the fact that no records of the interview were furnished to the third parties.

Furthermore, the inclusion of ‘general suitability’ as an assessment criterion didn’t help the Council, as it was too vague - and as a result a potential haven for discriminatory practice(s). Indeed, this predilection for allocating a high proportion of marks to ‘general suitability’, and ‘personality’ also contributed to Dublin Corporation’s undoing before an Equality Officer in 2000, as together with the failure to keep interview notes, it undermined the objectivity of the marking system. This latter failure featured again in 2015, when the Equality Tribunal fined a national school €54,000 for asking discriminatory questions and the binning of interview notes.

A decade after the consequential Nenagh Urban District Council case, ‘inconsistent’ interview notes contributed to an Equality Tribunal decision to expose Aer Lingus for age discrimination in the course of a cabin crew interview. Contributing to this decision was the fact that the subsequent post-interview feedback provided to the unsuccessful candidate by the organisation’s Chief Executive failed to tally with the interview board’s assessment.

The Lessons

A useful overview of the potential foul ups in this area was provided for Legal Island in 2014, when Michelle Ryan succinctly summarised the mistakes made in 3 cases taken against the Irish Prison Service (I.P.S.) in this area, warranting an €85,000 pay out:

1. The I.P.S. did not define or set down in writing the criteria for selection before embarking on a selection process.
2. They failed to use accurate and measurable means by which to assess the level of experience of the candidates.
3. They failed to use a scoring matrix or any accurate means of measuring or quantifying how any candidate scored as regards to the criteria put forward by the employer.
4. Only one of the selection panel was in possession of the information regarding the level of experience of each candidate.
5. They were not transparent about how a candidate would be selected.
6. They failed to follow a clear process.
7. There was no discernible connection between the qualifications of candidates and the result of the process.
8. They failed to keep any records or marking scheme.

Conclusion - Best Practice

Based upon statute and common law precedent - together with ‘best practice’ - employers would do well to heed the following guidelines when embarking on the recruitment and selection process:

• Prepare the key Job Analysis docs. (i.e. the Job Description, the Person Specification) and thereafter the marking or scoring system. Note that there must be a clear and logical link between these documents.
• Ensure that all job requirements are job relevant.
• Avoid negative stereotypes - via inappropriate photographs and images - when advertising.
• The job advertisement should ‘signal’ that candidates from all of the aforementioned nine grounds under the equality legislation are welcome to apply.
• If availing of an application form, ensure that it is only seeking information that is relevant to the capacity of the person to do the job.
• Don’t invite candidates to send digital or scanned photographs with their on-line C.V.
• The interview board should be comprised of a diversity of people.
• The interview process should allow all candidates to compete with each other on an equal footing (e.g. requiring adjustments for people with disabilities).
• Award marks in relation to how candidates’ score against objective criteria agreed in advance and retain all records, together with supporting notes.
• The interview questions should focus on competencies, qualifications, skills and experience.
• Medical tests should be in relation to the advertised post and not ‘fitness in general’, whilst special treatment or facilities at a ‘nominal cost’ should be provided to accommodate the needs of a candidate with disabilities.
  
  

NOTE: DR. Gerry McMahon is on the judging panel of the Irish HR Awards which take place on Thursday 6th December at Aviva Stadium.

Recognise the excellent contribution you and your HR team make to the success of your organisation by entering the Irish HR Awards 2018. The deadline for applications is 5pm on Friday 28th September. Learn more.