This is a case concerning discriminatory non-recruitment of a Polish national as a lifeguard. There were 39 applicants. All were Irish, with the exception of three applicants, including the complainant, who were Polish. Only one of the Polish applicants was ultimately successful while all 36 Irish applicants were. The employer used the services of Irish Water Safety to conduct the recruitment tests but it remained in control of its recruitment process.

The Tribunal concluded that a number of issues raised an inference of discrimination. It relied on the Labour Court decision in UCD v Rath (Determination No.: EDA119, 8th April, 2011), where it stated that "... it is well settled that for the purpose of establishing unlawful discrimination the ground relied upon ... need not be the only or indeed the dominant reason for the impugned decision. It is sufficient if the discriminatory ground is anything other than a trivial influence in that decision.... The type or range of facts which may be relied upon by a complainant to shift the probative burden can vary significantly from case to case....it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."

The Tribunal concluded that:-
* The complainant was at least as well qualified as all 37 of the successful candidates, and better qualified than most.
* The complainant was at least as experienced as all 37 of the successful candidates, and considerably more experienced than most.
* The complainant was the only person out of all 39 candidates who failed in the First Aid element of the course despite being at least as well qualified in that area of competence as anyone else and better qualified than most.

The Tribunal also considered that nationality was a factor for a range of reasons, including that the complainant had previously worked a Senior Lifeguard on an Irish beach and was marked lower than Irish applicants with no little or no experience. It also took into account the last minute change in the timing of a second test from the day after the first until two weeks later, after the Polish applicants had already made their travel plans (and resulting in a second Polish applicant not being offered employment).

The Employer then failed to rebut the presumption of discrimination. Various factors contributed to this outcome. Although other Irish applicants received negative comments, they were all passed while the complainant was failed. His mark had been reduced from the pass mark of 25 to a fail mark of 24. No extra marks had been awarded for a First Aid qualification, although this was stated in the advertisement. Even though the tests had been marked by an independent body, the process remained the responsibility of the Council.

The complainant was awarded €7,500 in respect of the discrimination and the Tribunal also made an order requiring the Council to “ensure that all those involved in recruitment for it, including those for whose actions it can be held vicariously liable, are made familiar with their obligations under relevant Equality legislation. In particular in this respect, I order that the respondent carries out a review of recruitment processes undertaken by it or on its behalf to ensure that they provide appropriate procedures and mechanisms for the prevention of unlawful discrimination in the context of the Employment Equality Acts.”

This is a valuable case on recruitment processes. There was clear evidence of detrimentally inconsistent marking of the complainant, changing of a mark from pass to fail, failure to award marks for an advertised criterion and changes to the arrangements which were to the detriment of non-Irish applicants.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-115-Full-Case-Report.html