Solid interview structure vital to steer clear of discrimination claims

Jobseekers and those looking for promotion within companies have legal rights under Irish employment equality law. This protects candidates against direct and indirect discrimination discrimination on nine grounds: gender (including pregnancy) marital status; family status; sexual orientation; religion; age; disability; race/colour/nationality/ethnic or national origins, and membership of the Traveller community

The equality laws have resulted in a need for significant changes in employment practices and procedures, particularly in the recruitment and promotion of staff, including both internal and external candidates.

Direct discrimination is fairly clear cut. Less obvious is indirect discrimination, which occurs where an apparently neutral provision puts persons at a particular disadvantage.

Under equality legislation, prospective employees may have a cause of action if they are unsuccessful candidates, despite never having entered into a contract with the employer.

Claims may be brought in respect of all stages of the recruitment process. To best defend potential equality claims arising from recruitment or promotion, an employer should formalise its selection processes in the following way.

First, companies should appoint and train a selection committee to carry out the selection exercise from start to finish in respect of each post. Members should be as diverse as possible.

A job description and person specification should be drafted before advertising the job. These should list the duties of the post and the competencies/criteria for the role, identifying the weighting to be attached to each of them.

The competencies should be necessary and insofar as possible capable of objective assessment. For example, a requirement that an employee has a certain amount of full-time experience rather than part-time work experience is likely to be indirectly discriminatory, possibly on the grounds of gender, marital and family status and disability.

A detailed marking system should be prepared in advance of the interview, relating, and weighting the marks to the questions or topics, based on the competencies/criteria.

Job advertisements should be worded in such a way that it cannot reasonably be regarded as indicating an intention to discriminate.

Prepare an application form or request CVs. It is generally better to require candidates to complete a standard application form to ensure that all candidates are being assessed on their replies to the same objectively necessary and non-discriminatory questions. If the employer decides to short list rather than interview all candidates, the criteria should be applied consistently to all candidates.

When it comes to the interview process, all candidates should generally be treated in the same manner in arrangements for interview or assessment, unless a candidate requires reasonable accommodation because of a disability.

The selection committee should draft a list of guideline questions or topics and decide which members of the committee will ask particular questions and what answers are expected from candidates.

All interviewers should complete individual notes and marking sheets during or immediately after the interview.

Interviewers and those bringing candidates to and from the interview room should avoid making discriminatory remarks or asking discriminatory questions, for example, questions about how the children of that prospective employee are to be looked after during the working day.

Comments that are made jokingly may be taken seriously and lead to claims.

All assessment sheets and interview notes should be retained by the employer, for at least 12 months after the interview, as claims may potentially be brought during that period.

Recruitment practices should be reviewed to avoid claims of direct and indirect discrimination. Proper structure and planning are important if an employer wishes to be able to successfully defend claims.

Decisions of the Equality Tribunal and Labour Court have been strongly influenced by employers' failure to set recruitment and promotion criteria in advance and determine adequate marking for these; failure to apply agreed criteria; failure to train the members of the interview board, and failure to make and/or retain the interview notes and marking sheets prepared by individual interviewers during or after the interview.

The burden of proof shifts to employers to prove the absence of discrimination if candidates or employees establish facts from which discrimination may be presumed. The employer's records are therefore very important.

If employers do not follow recruitment, interview and promotion procedures on the lines of those set out above, they are at risk of findings of discrimination even where they have sought to act fairly and reasonably in a selection exercise.

That could result in awards of compensation, including awards for distress, whether or not the candidate or employee has lost financially. These can range from €12,700 for external candidates to two years' gross salary and benefits for internal applicants. In gender discrimination cases, there is no ceiling on an award in the Circuit Court.

In addition, equality officers can make orders that even force companies to appoint an unsuccessful candidate to the post.

Michelle Ní Longáin is partner at BCM Hanby Wallace solicitors