Just the job: negotiating legal maze of recruitment policy

Many Irish employers have fallen foul of equality and procedural legislation - to their great cost, writes Gerry McMahon.

To the surprise of many, the legal maze pertaining to the world of work kicks in well before newly recruited staff show up for work.

That is, an employer's right to hire as they please is now hugely constrained by equality and freedom of information/data protection laws.

Stark though it may seem, the legal maze surrounding recruitment and selection starts long before the job interview and ends well after it has been held.

For example, even the job advertisement has failed to escape the legal mallet, as Ryanair discovered in 2002 when it went looking for "young" and dynamic applicants - in breach of the age provision in the equality laws.

Then, at the far end of the process, just last year the ICE group was adjudged to have discriminated on race grounds when it sought two references in respect of a non-Irish national's job application.

• Legal potholes

Having survived the shortlisting process, legal complications can also arise before interview.

For example, in 2000 the Equality Tribunal agreed that Cert's request that female interviewees wear a standard uniform to attend at interview constituted gender discrimination.

Last year the Department of Justice was exposed for discriminating on grounds of disability due to a failure to provide "a reasonable deferment" of an interview for a civil servant hospitalised with a stomach complaint.

The East Coast Area Health Board was exposed for failing to provide wheelchair access to its interview venue.

On a similar theme, Siemens business services was recently found to have discriminated because it didn't provide an applicant 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 lessons

Whilst one may be forgiven for thinking that we've moved on from the blatant sex discrimination practices of the past, nothing could be further from the truth.

For example, already this year Norwich Union has come unstuck before the Equality Tribunal for gender discrimination. A significant contributory factor was the "mismatch between the competencies in the role profile form and assessment criteria applied in practice".

Amongst the most notorious of 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.

On a similar basis, in 2004 a record award of €117,000 - plus €10,000 for stress suffered - was made by an equality officer against St Anthony's School, Kilcoole. Questioning the candidate about "her suitability to be appointed to the post (of school principal) in the light of her gender" did not go down well.

• Assessment criteria and notes

In 2003 the Department of Health and Children was ordered to pay €40,000 for a lack of proper selection assessment criteria, together with a failure to retain interview notes.

Inadequate interview notes also exposed Superquinn in 2001, whilst only last year Dublin City University fell foul of an equality officer's finding for its failure to retain interview notes and to make provisions for gender balance on an interview panel.

The gender balance issue also contributed to a finding against Cork and Donegal VECs in 2000 and 2002 respectively. The latter VEC also erred in its 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.

While it's one thing to have selection assessment criteria, it's another that these be appropriate and 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 recognise the female candidate's experience.

The following year Co Clare VEC found itself on the wrong side of a High Court decision after one of its interview boards failed to correctly apply the marking scheme.

One of the more unsavoury practices to surface in this area is the manipulation of a marking scheme prior to interview in favour of a preferred applicant.

This was judged to have occurred in 2004, when the Labour Court concluded the South Eastern Health Board should award a complainant €45,000.

• Practical advice

Taking a steer from statute law, case law precedent and best practice, employers would do well to heed the following tips:

Take care that the job advertisement is relevant to the job and that it welcomes all applicants in a manner that does not infringe equality laws.

Ensure that all interviewees are enabled to compete on an equal footing, eg with appropriate supports/adjustments for those with >vis-à-vis job-related criteria and retain all records and supporting notes.

Questions posed at interview should relate to job-relevant qualifications, skills and experience.

After each interview, interviewers should assess candidates independently, prior to their discussion in search of group consensus.

Dr Gerard McMahon is a consultant and lecturer in human resource management at the faculty of business, DIT. E-mail: ppl1@eircom.net