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Failure To Explain Basis For Not Shortlisting Candidate For Interview Costs Employer €40,000

Facts: In 2019, the Respondent advertised an internal competition for the role of Assistant Principal Officer, which is a senior managerial role in Civil Service. It was also advised that the Candidates may be shortlisted based on their application and written assessment of their manager based on the . The applicants were shortlisted for interview based on an assessment of their applications in light of pre-determined criteria.

The Complainant was a Higher Executive Officer, and her application was not shortlisted for interview. The Complainant alleged that she was discriminated against on the ground of age based on the following primary facts:

Based on the data provided by the Respondent, the Complainant claimed that it was clearly demonstrated that the older candidates had a significantly lower chance of being shortlisted. The Respondent refuted Complainant’s claim and claimed that the selection process for the promotion was entirely based on the headings in the application form and that shortlisting process was carefully and appropriately managed. The Respondent further argued that the selection criteria were objective and honestly applied in practice, the panel were trained in respect of unconscious bias and discrimination and were of different gender and age groups.

Findings and Decision: The Adjudication Officer noted that both Complainant and the Respondent relied on the Labour Court decision in Gillian v Department of Health and Children. In this case, the Labour Court summarised that in cases relating to age-based discrimination, a number of tests (which were described) need to be considered to convince the Court that inference of discrimination is appropriate.  Further referring to Public Appointments Service and Mr Bernard Lester (EDA 2022), the Adjudication Officer noted that where the complainant establishes the fact that the employee was presumably discriminated, the employer must prove the contrary and stated that it is sufficient that the presumption of discrimination within the range of inferences is sufficient. This passed on burden of proof on to the Respondent to defend their stand. Due to the lack of transparency in dealing with the matter, the Adjudication Officer found that the Respondent had failed to rebut the presumption of discrimination.

The Adjudicator concluded that the Respondent had discriminated against the Complainant on the grounds of age, contrary to the provisions of section 8 of the Employment Equality Act, 1998 arising from unintended indirect discrimination. The Adjudicator was satisfied that the Complainant had detailed primary facts that demonstrated on a statistical analysis of the data provided by the Respondent that older candidates in the in the age range of 50-65 had a significantly lower chance of being shortlisted. This fact along with the lack of transparency concerning the shortlisting procedure adopted by the board and the one sentence explanation given to the Complainant to explain why she was not successful, which was not a sufficiently meaningful explanation based on the detail in her application to meet the burden of proof on the Respondent to prove that its decision was not discriminatory.

Based on the effects of discrimination on the age ground being related to a loss of opportunity to compete at interview, the Adjudicator noted that a compensation of 26 weeks remuneration was just and equitable in this matter considering the Complainant’s loss of opportunity to compete at the interview. However, strangely the Adjudication Officer noted that the total remuneration for 26 Weeks was below the maximum statutory remedy of €40,000 and the Adjudicator awarded the Respondent to pay the Complainant the sum of €40,000 (instead of 26 weeks remuneration) as compensation for the consequences of the discrimination and that the Respondent adopts the shortlisting recommendations detailed in the Commission Casebook of 2017.

Takeaway for the Employers: For employers to avoid discrimination awards when recruiting employees, they should ensure that personal details such as age and gender are not easily identifiable in the selection process. Employers should also ensure that the basis for its decisions made in the process are well documented to give candidates sufficient feedback on their application. This decision also emphasises that transparency in the process and maintaining adequate records is required for this to be achieved.

Link  – https://www.workplacerelations.ie/en/cases/2021/march/adj-00025554.html

Authors – Anne O’Connell & Chaitra Girish Mallya

29th March 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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