Michelle Ryan writes:

In this article, we will take a closer look at how to manage internal promotion selection correctly and look at three recent Equality cases taken against the Irish Prison Service as examples of what not to do in terms of selection amongst candidates for internal promotion.

The Law

The Employment Equality Acts, 1998 and 2008, (“the Acts”) outlaw discrimination on nine stated grounds in relation to access to employment; conditions of employment; training or experience in relation to employment; promotion or re-grading and classification of posts.

The nine grounds are gender, civil status, family status, age, race, religion, disability
sexual orientation, and membership of the Traveller community. We will be examining discrimination on the ground of gender.


The Cases

* Julie Madden v Irish Prison Service (DEC-2013-157)
* Anne Delaney v Irish Prison Service (DEC-E2013-155)
* Monica O’Sullivan Byrne v Irish Prison Service (DDEC-E/2013/156)

These three disputes are all similar, in that, each Claimant alleged that, she was discriminated against by the Irish Prison Service, on the grounds of gender, in terms of section 6 (2) and contrary to section 8 of the Acts, in relation to her conditions of employment and promotion when she was unsuccessful in her application for a post to which more junior and less experienced male officers were appointed.

In all three cases, the Equality Officer found that the employer’s selection process was deficient and in breach of the Acts.


In these cases, what did each employee have to prove?

1. That she was treated less favourably.
2. That she was treated less favourably than a comparator.
3. That she was treated less favourably because of her gender.
4. That she established a prima facie case.

The employees satisfied all of the above.


What mistakes were made by the employer?

1. They 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 discernable connection between the qualifications of candidates and the result of the process.
8. They failed to keep any records or marking scheme.

Cost to the Employer

1. Two of the employees were appointed in the permanent position of the post they had applied for and such appointment was backdated to the date of discrimination, which was the date of application for the post, with all consequential employment rights and entitlements and recognition of service. The third employee had since transferred to another prison and a back dated appointment to the post was not considered appropriate in her circumstances.
2. All three claims succeeded and in total the Employer had to pay €85,000 in compensation, which was not taxable.
3. The employer was directed to ensure that a fair selection process be adopted in all future selections.
4. The employer was directed to ensure that future selection panels be trained in the process to be used.
5. The employer was directed to adopt a marking scheme and attach a weighting to each element.
6. The employer was directed to retain notes.

The lesson from these cases is that employers need to ensure that they are fair and transparent about the procedures to be followed in the selection of one candidate above another for promotion. The Acts imposes an onerous burden on employers regarding their obligations not to discriminate amongst employees and Employers must ensure that they have fair procedures which are followed and that a record is retained of the selection process used, in order to avoid falling foul of the Acts.

Some Practical Tips

1. Employers should devise a selection matrix which should be retained on file for at least twelve months after the appointment of the successful candidate.
2. Employers should ensure that the chosen criteria are not discriminatory and apply the chosen criteria consistently as between the candidates.
3. Keep a written record for each interview.
4. Retain reasons for selection or rejection.
5. Ensure that any Managers present at the interview are fully aware of what questions are appropriate and the selection process being used.
6. Prepare a thorough job description in advance. This should be a written statement of the purpose, scope, main duties and responsibilities of the job and should accurately describe the job as well as the skills required to carry out that job. It should be written in clear and neutral language free from any discriminatory reference.
7. A basic set of questions should be drawn up and asked of all candidates who should be given roughly equal time in the interview.
8. A clear marking system needs to be decided in advance in relation to the job requirements and this should be considered in detail.