+353 (0) 1 211 8434 - info@aocsolicitors.ie -

- News

- News

Internal Recruitment Policy found to Indirectly Discriminate against Employee on Grounds of Disability

The Complainant in Tanya Phelan v Bausch Health Ireland Limited ADJ-00041120 alleged that the Respondent had discriminated against her by not shortlisting her for a job on the grounds of disability.

Facts: The Complainant commenced employment with the Respondent in 1998 and had 25 years of unblemished service. The Complainant held the Stand In position as a Sterilization Operator for over 4 years and from March to December 2021 was on sick leave due to a hip operation.   

In September 2021, the Respondent advertised for a fulltime sterilization role, and the Complainant applied for the role, however despite being the only application no selection process or interview took place at that time. The position was re-advertised in November 2021 and the Complainant applied for the position on her return to work in December 2021. She was advised in January 2021 that her application was unsuccessful due to her “timekeeping and attendance” record. The Complainant appealed this decision and lodged a grievance which was not upheld.

The Complainant argued that but for her disability she could have been interviewed for the role. She had an exemplary record, with no absences in 2022, in 2021 she was absent due to her hip surgery, 2020 no absences and had one late and 2 weekend sick leaves in 2019.

It was argued that the Respondent applied a 3.5% absenteeism bar on selection for internal roles and it was submitted that this was indirect discrimination as the Complainant’s absenteeism was only due to her disability.

The Respondent while strongly refuting the claim, submitted that it had at all times kept in touch with the Complainant during her absence and kept her informed of the open position and initially kept it open for two months. However, medical assessments at the time indicated no return-to-work date. 

The HR Business partner also gave evidence that 3.5% sick leave cut off was applied universally. It was used for shortlisting, pay progression and the recruitment process.

Decision: The Adjudicator, Gaye Cunningham, referred to a number of cases in the decision and ultimately concluded that the policy which imposed a 3.5% rule universally across the company and while presented as a ‘neutral provision’, practically affected more employees with the protected characteristic of disability. The Adjudicator decided that this operated to the disadvantage of the Complainant and constituted indirect discrimination.

The Adjudicator found that the Respondent had indirectly discriminated against the Complainant and awarded the Complainant €7,000 in compensation. Furthermore, the Adjudicator also stated that the Respondent should revise their 3.5% rule for internal recruitment policy to take into account the potential effect of indirect discrimination.

Takeaway for Employers: Employers need to ensure that any such internal recruitment polices exclude the application of any employee who has a disability. While in the instant case, the policy was applied universally to all employees, it practically affected employees with the protected characteristic of disability, leading to indirect discrimination.

Links https://www.workplacerelations.ie/en/cases/2024/march/adj-00041120.html

Authors – Ethna Dillon and Anne O’Connell  

26th April 2024

If you found this article useful you might like our employment law newsletter. We write monthly articles, like this, covering interesting cases, decisions, news and developments in Ireland.

Related Articles