Guidelines for Health Service Employers on
Equal Opportunities Aspects of
Recruitment and Selection
and Promotion
April 2005
Employer Representative Division
63-64 Adelaide Road
Dublin 2
Tel: (01) 6626 966 Fax: (01) 6626 977
This document does not purport to be definitive in terms of legislative
provisions or obligations. It aims to support the local management of
recruitment, selection and promotion.
1.
Introduction
As provided for in the Action Plan for People Management and the national pay
agreement Sustaining Progress, an Equal Opportunities / Diversity Policy and
Strategy Objectives for the Health Service was produced by a Working Group
comprising health service employer representatives (HSEA, IBEC, Health Boards,
Voluntary Hospitals and the Intellectual Disability Sector) and came into effect on 1
May 2004.
The purpose of the Equal Opportunity/Diversity policy is to create a workplace which
provides for equal opportunities for all staff and all potential staff and protects their
dignity at all times. It covers all aspects of employment including recruitment and
selection, dignity at work and conditions of employment.
A Local Implementation Plan to give effect to the Equal Opportunities/Diversity
Policy was produced by the national Working Group in consultation with all of the
human resource groups within the sector.
Recruitment and selection is a key element of the Implementation Plan as it remains
the issue that arises most frequently in equality claims that are referred under the
Employment Equality Act, 1998 and 2004. The Equality Tribunal Legal Review 2003
stated that by far the most common type of complaint was discrimination in selection
for employment or promotion, which accounted for nearly half of the employment
equality decisions.
These guidelines have been produced as part of the
Implementation Plan and aim to assist employers in ensuring that all persons have
equal access to job opportunities within the health service and arrangements for the
selection of staff do not discriminate against persons on any of the nine grounds
covered by the Employment Equality Act, 1998 and 2004.
It is important to note that the guidance set out in this document is derived from case
law on this topic but it is not intended to be definitive or prescriptive.
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2.
Legislative Framework
The Employment Equality Act 1998 and 2004 prohibits discrimination on the following
grounds:
 Marital Status
 Family Status
 Race
 Religion
 Age
 Disability
 Sexual Orientation
 Gender
 Membership of the Traveller Community
Discrimination occurs where, because of any one of these grounds, a person is treated
less favourably than another person is, has been or would be treated in a comparable
situation. The Act applies to all employees and to applicants for employment and
training. Thus all health service staff and prospective employees are covered by its
provisions except where an exemption applies under the relevant ground.
The legislation provides that all persons should have equal access to job opportunities.
Access covers all arrangements for filling a vacancy including placing the
advertisement, shortlisting applicants and conducting interviews. Thus an employer
must not discriminate in any arrangements made for selecting the employee or specify
entry requirements that could discriminate against potential applicants. Best practice
at each stage of the recruitment and selection process helps to avoid unlawful
discrimination as well as ensuring that the most suitable candidate is appointed to the
job. This document outlines the main stages of the recruitment and selection and
promotion processes having regard to the provisions of the Employment Equality Act,
1998 and 2004 and relevant caselaw.
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3
The Recruitment and Appointment Process
The recruitment and selection process usually consists of a preparatory stage, the
selection process and follow- up. The recruitment and selection processes for internal
and external recruitment tend to be similar. Section 6 outlines the case law of
particular relevance to internal recruitment and promotion.
3.1
The Preparatory Stage
The preparatory stage involves the following:
Identify the need
Prepare a job description and person specification
Decide on the selection method(s)
Place the advertisement
3.1.1 Identify the need
When a vacancy arises the following should be considered:
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
Has the job content or workload changed since the previous employee
was recruited?
Could more flexible attendance arrangements, which better meet
service requirements, be introduced (e.g. a number of part-time
positions to cover extended opening hours)?
Are there any changes anticipated which would require different skills
from the jobholder, e.g. plans to introduce new technology
Should a person with similar qualifications be recruited or should the
skill mix be changed?
Would the vacancy provide a career development opportunity for
another member of staff?
It may be helpful to discuss these options with the existing jobholder and other
staff in the department and to seek advice from the HR department before
reaching a final decision.
3.1.2 The Job Description and Person Specification
The Job Description
A job description sets out the main duties and responsibilities of the job. It
should be drawn up in collaboration with the appropriate line manager in order
to ensure that it accurately reflects the requirements of the job. A template
for the job description is set out below:
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Key Points:
Job title/Grade
Department
Location(s)
Reporting Relationships
Overall purpose of the job
Main duties and responsibilities - It is not necessary to provide an exhaustive list
of all the duties that the jobholder may be required to carry out. Instead, the job
description should contain a flexibility clause to encompass any duties which the
job-holder may be required to undertake, e.g. “In addition to your normal duties,
you may be required to undertake other duties appropriate to your position as may
be assigned to you by your supervisor”.
 Hours of work (including such additional hours as are necessary)
 Salary
 Any special conditions - e.g. requirement to be on-call, to travel, to work
unsocial hours






The terms and conditions that currently apply to the job should also be
reviewed in order to identify the scope for greater flexibility. For example, it
may be timely to review traditional attendance arrangements and consider
whether requests to work part-time or atypical hours can be facilitated. This
may encourage applications from persons with family commitments or other
persons who do not wish to work full-time.
The benefit of a job description is that it provides those involved in the
recruitment and selection process with a clear understanding of what the job
involves. It can also be sent to job applicants to enable them to decide
whether the job is within their area of interest, competence and experience.
From an equal opportunities perspective, only duties which are essential to the
job should be included in the job description. It is important to ensure that the
manner in which the main duties and responsibilities of the job are described
does not deter persons from any of the nine grounds covered by the
Employment Equality Act from applying.
Person Specification
Once the main duties of the job are established, the qualifications, skills and
personal attributes required to carry out the job effectively can be identified.
This information is normally set out in the person specification. The following
information is normally set out in this document:
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Education / qualifications
Experience
Skills
Competencies Personal qualities – e.g. good oral/written communication skills,
caring disposition, financial acumen, team working.
5
As with job descriptions, criteria set out in the person specification should
relate to the essential requirements of the job. For example, it may be
unlawful to specify requirements such as possession of a driving licence or
particular academic qualifications if not deemed necessary to perform the job
effectively.
In Sweeney v Saehan Media (DEC-E2003-017) the complainant was refused
employment in a job which had been advertised as requiring a Leaving
Certificate standard of education. He argued that the condition was
unnecessary given the nature of the job and was indirectly discriminatory
against members of the Traveller community who were less likely to have this
level of education. The complainant was not successful in this instance but the
Equality Officer did recommend that steps should be taken to ensure job
advertisements “do not contain references to educational requirements that a
category of individuals covered by the Act are substantially less likely to have
attained, unless that level of education can be objectively justified, or
reasonable in the circumstances, as the case requires”.
The job description and person specification form the basis for identifying
selection criteria against which all candidates should be assessed. Managers
therefore have a key role to play in drawing up or updating the job description
and person specification to ensure that they accurately reflect the
requirements of the job.
3.1.3 Advertise the Position
The job should be advertised as widely as possible to attract applications from
a wide range of suitable candidates. It should appear in a wide range of media
such as newspapers, specialist journals, staff notice boards, online recruitment
agencies sites or may be circulated by e-mail.
The content of the advertisement should only specify the qualifications, skills
and personal attributes relevant to the job as identified in the person
specification. Care should be taken to ensure that the wording of the
advertisement does not deter any potential applicants. For example, stating
that applicants should be ‘mature’ could deter younger persons from applying
and may leave the organisation open to a claim of discrimination.
An illustration of this is the case taken by the Equality Authority against Ryan
Air (DEC-E2000-014) in relation to an advertisement in the Irish Times
newspaper. In the advertisement the company highlighted their interest in “a
young dynamic professional” and stated, “the ideal candidate will be young
dynamic…”. The Equality Officer in this case found that the use of the word
“young” in the advertisement was discriminatory on the age grounds and
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recommended that Ryanair pay £8,000 (€10,160) as compensation for the
effects of the discrimination. .
If photos are used they should portray an image of a balanced workforce and
avoid stereotypical images, e.g. a man sitting at a desk dictating to a woman
with a notepad could convey the impression that senior posts in the
organisation are predominantly filled by men.
The job advertisement can signal the organisation’s commitment to positive
action1. This can include encouraging applications from members of particular
sections of the community or circulating the advertisement to organisations
that work with particular groups who may be currently under-represented in
the organisation e.g. persons with a disability or members of the Traveller
Community. The advertisement can also indicate if the employer provides
training, as this may encourage applicants to consider that they may be able to
do the job if given appropriate support.
Summary Preparatory Stage
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
Job descriptions and person specifications for the post should be
created where not already in place or updated and should be based
on the main duties of the post and the essential knowledge, skills
and personal attributes required to carry out the job effectively
The terms and conditions that currently apply to the job should be
reviewed in order to identify the scope for greater flexibility e.g.
more flexible attendance regimes.
The advertisement should be circulated as widely as possible and
underrepresented groups may be specifically targeted.
Care should be taken to ensure that the wording or images in the
advertisement would not deter potential applicants from any of the
nine groups or leave the organisation open to a claim of
discrimination.
1
Employers can take measures to promote equality between employees and prospective employees on all
of the nine grounds covered by the Employment Equality Act.
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4
The Selection Process
Application Forms / Shortlist applicants
Interview
Determine who the most suitable candidate is based on the selection
criteria
4.1.1 Application Forms
Applicants may be required to complete a standard application form
which may be used to shortlist candidates for interview. Application
forms should only seek information that can be used to determine the
suitability of the person to do the job. Questions regarding a person’s
marital status, age or other characteristics should be avoided unless
they can be shown to be relevant to the job.
In Mr Tom O’Connor v Lidl Ireland (DEC-E2005-012) the complainant
claimed he was discriminated against on the grounds of age when he
was not invited to attend for interview for the position of District
Manager. One pertinent factor, which helped establish a prima facie
case of indirect discrimination, was the fact that application contained
a question on date of birth. The Equality Officer recommended that the
organisation remove the requirement to specify date of birth on job
application forms.
Where possible the application form and any documentation on the job
should be available in different formats such as large print, tape, disk or
e-mail so that they are accessible to persons with a disability. The
application form may also invite applicants to specify whether any
special provisions or facilities are required at the selection process, for
example, use of a signer or interpreter or car parking within close
proximity to the building.
A separate form should be used if requesting information for monitoring
purposes (e.g. ethnic origin). This information should be sought on a
voluntary basis and should not form part of the recruitment and
selection process.
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In Ahmed v ICTS (DEC-E2003-023) the complainant claimed he was
discriminated against on the grounds of race during the recruitment
process for the position of security agent at Dublin Airport. One issue
which arose was the nature of the application form which the
complainant was asked to complete. He claimed he was asked to
indicate his ethnic or national origin on this form, which while marked
optional and separate from the application form, was to be handed to
the interviewer. The Equality Officer recommended that the nonobligatory information forms should be kept separate from the
application form and should be accompanied by an envelope and a
deposit box so that confidentiality is maintained.
4.1.2 Interview
Claims of discriminatory treatment frequently arise in relation to the
selection interview. The interview board should therefore be given
clear guidance on how to conduct interviews in a non-discriminatory
manner to ensure that they comply with the Equal Opportunities/
Accommodating Diversity Strategy and Policy Objectives and
Employment Equality Act 1998 and 2004. It is also advisable to
ensure the interview board is composed of more than one person and
that a gender balance is maintained where reasonably practicable.
Interviews should focus on a candidate’s skills, talents, qualifications
and capacities for the job. The interview board should review the job
description and person specification in advance and ensure that the
criteria for assessing candidates reflect the requirements of the job.
Interview topics should be based on selection criteria and planned in
advance to ensure consistency of treatment. This will help to avoid
questions related, for example, to ethnic background, family
responsibilities or other subject areas that could give rise to claims of
discriminatory treatment.
The interview board should also be aware of the pitfalls of engaging in
‘small talk’ with candidates prior to the interview, e.g. commenting on
a candidate’s accent and asking where they are from. While such
remarks may be intended to put candidates at ease, an unsuccessful
candidate may subsequently allege that they found such remarks offputting and this affected their performance at interview.
Interviewers should be alert to the dangers of asking potentially
discriminatory questions, for example:

Female candidates should not be asked questions about
their child-minding arrangements or how their spouse
would feel about them working unsocial hours.
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
Young persons applying for supervisory positions should not
be asked questions about how they would cope with
managing staff that are much older than them. This line of
questioning might convey the impression that the interview
panel is biased against younger candidates because older
staff may resent taking instructions from them. This could
result in an unsuccessful candidate alleging discrimination
on the basis that an older candidate would not have been
asked the same question. Similarly, older candidates
should not be asked how they would feel about taking
instructions from a younger supervisor.
In Hughes v Aer Lingus (DEC-E2002-049) a woman of 53 applied for a
cabin crew position. At interview she was asked how she would feel
about being directed by younger employees. She was not selected for
the post and the rejection letter stated that her qualifications and
experience were thought unsuitable for this basic level. The Equality
Officer held that the question was discriminatory and might have
affected the candidate’s interview performance. It was directed that
the candidate be offered a fresh interview with a differently composed
interview board or offered a position within 12 weeks.

The interview board may wish to check the ability of
candidates to fulfil certain job requirements such as
attendance hours, on-call liability, travel, etc. This should
be done without reference to a candidate’s marital status,
family commitments, disability or other characteristics. It
is useful to specify these requirements in the job
description so that prospective applicants are clear from
the outset about the conditions of employment. The
interview board may also outline the requirements of the
job to all candidates (e.g. on-call liability, night duty, etc.)
but should leave it to candidates themselves to decide
whether their personal circumstances will affect their
ability to meet these requirements.
In the case of Sheila O’Donnell v St Baithin’s National School (DEE02/5)
a male and a female applicant were interviewed for a post of homeschool liaison officer. Due to the fact that the job involved working in
the evenings or at weekends both candidates were asked about their
family responsibilities. The question of whether or not a candidate was
willing to work outside normal working hours considering family
commitments was asked. The case hinged on whether the question
could be justified by objective factors. In this case the Labour Court
found that the reason the question was asked was because the job, as
home-school liaison officer, included meetings and home visits to
families, some of which would have to be done in the evenings or at
weekends to facilitate working parents. Nevertheless the Labour Court
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found that the question asked of each of the candidates was indirectly
discriminatory because more women than men would generally be
adversely affected by the requirement to be flexible due to family
commitments.
In Murray v Scoil Mhuire and the Department of Education and Science
(DEC-E2003-015) the candidate for a teaching position submitted that
the reason she was not appointed was her pregnancy, impending
maternity leave and consequent delay in being able to take up the
position. During the course of the interview a question was asked of all
candidates in relation to their availability to take up appointment if
appointed. Ms Murray also contended that a reference was
subsequently made to the difficulty of obtaining substitute teachers.
The Equality Officer found that pregnant women would be adversely
affected by the practice of asking such a question as issues would arise
in relation to their immediate availability or ongoing availability and
that there must be objective justification for asking such a question.
It should be borne in mind that in order to prove that discrimination has
occurred during the interview process, an applicant does not have to
prove that s/he would have been successful in obtaining the job if s/he
had not been asked the discriminatory question. Many complaints of
discrimination have been upheld and compensation awarded as a result
of the distress and injury suffered by reason of discriminatory questions
asked or comments made by the interview board even though the
claimant was not deemed to be the best candidate for the job.
Selection Criteria and Marking Schemes
A formal marking system helps avoid the pitfalls of stereotyping and
snap judgements and is an importance defence against claims of
discriminatory treatment. It is important to ensure that selection
criteria are based on the job description and person specification in
order to ensure that the criteria for assessing candidates reflect the
requirements of the job. This must be done in advance of
shortlisting/interview.
In the case of Eibhlin Nic Fhlannchadha v Colaiste Mhuire (DEC-E2004058) the fact that the selection committee had access to the
candidates’ applications before the selection criteria and the marking
scheme were agreed contributed towards a inference of discrimination
on the gender ground and helped establish a prima facie case of
discrimination. Similarly in the case of South Eastern Health Board v
Brigid Burke (EDA0410) the Equality Officer noted that the interview
board met on the morning of the interview and decided on the marking
system after examining the Curriculum Vitae of the two candidates.
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It is important that all of the criteria are used in evaluating the
candidates.
In the case of Revenue Commissioners v O’Mahoney, Smith, Lovett and
O’Tuama (Determination No 3/03) there were six criteria to be used by
the selection board in evaluating the candidates. However, only three
of the criteria were referred to in the selection board’s notes on the
evaluation of the candidates. This led to a presumption that not all of
the criteria were used to evaluate the candidates and thus called into
question the objectivity of the selection board.
Candidates should be assessed against each of the selection criteria and
awarded an appropriate mark under each category. The marking sheet
should also contain a section for comments in relation to each of the
criteria.
The following equality cases illustrate the importance of a fair and
consistent marking system.
In Gillen v Department of Health (DEC-E2003-035) the Equality Officer
found a lack of proper assessment criteria for the competition of
Principal Officer. The Equality Officer noted that no formal marking
system was in place for this particular post. A Department of Finance
Circular outlined the necessary skills and competencies but there was
no marking system outlining how the various competencies were to be
evaluated. The Equality Officer also noted that there was an absence
of interview notes for the relevant competitions.
Once a marking system has been agreed it is important that it is
followed and applied fairly. There have been some significant cases
involving health service employers which illustrate this point. McGinn v
Daughters of Charity of St Vincent de Paul (DEC-E2002-054) and Burke v
South Eastern Health Board (DEC-E2003-014) are two examples (these
cases will be outlined in section 6). In both cases the Equality Officer
found that there were inconsistencies in how the marking systems were
applied to different candidates. In particular the headings under which
marks were given were broad and non-specific and the employer was
unable to provide a satisfactory explanation as to how the marks were
arrived at.
These cases demonstrate the importance of having specific job-related
selection criteria and ensuring that the interview board is consistent in
their assignment of marks against each of the different selection
criteria. The marking system should be constructed before applications
are received and the interview process begins and should be based on
the requirements of the job.
Each member of the interview board should mark the candidate on the
individual criteria during the course of the interview and where possible
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provide an explanation for the mark. The overall mark should be based
on the sum total of individual criteria marks.
In Murray v Scoil Mhuire and the Department of Education and Science
(DEC-E2003-015) the candidates for a teaching position were not marked
individually by the assessors but were marked by consensus after each
interview. Accordingly only one marking sheet was used.
The interview board consisted of three members, one of whom was the
Principal of the school. The other two members of the board stated
that they were guided by the Principal in the marking of the candidates.
The Equality Officer found that the operation of a consensus marking
system could have allowed one member of the interview board to have
considerable influence the outcome of the selection process thus
impacting on the objectivity and fairness of the process.
Interview Notes
Notes or ‘aide memoirs’ made during the course of the interview should
be retained with the marking sheets as they form part of the record.
While it is good employment practice to retain these notes, there must
be an awareness that this information may be required if the selection
decision is challenged. Care should be taken not to write comments
which might have discriminatory connotations.
The Equality Officer in the Eibhlin Nic Fhlannchadha v Colaiste Mhuire
(DEC-E2004-058) acknowledged that the primary focus of interview
notes is to aid the selection committee in the marking of candidates and
as such “interview notes cannot be regarded as transcripts of
interviews”.
The practice of shredding interview notes and only retaining details of
the candidates’ overall marks can suggest a lack of transparency in the
interview process. The Equality Officers and the Labour Court have on
numerous occasions made reference to the fact that the absence of
such notes can call into question the transparency and objectivity of the
assessment process.
In Daughters of Charity and Martha McGinn (ADE/03/3) the Labour
Court found “that the absence of any contemporaneous notes of the
interview, and the manner in which the marking credited to candidates
was arrived at, makes it difficult for the respondent to rebut the
presumption of unlawful discrimination” and upheld the Equality
Officer’s finding of discrimination.
All application forms, interview notes, marking sheets and any other
documentation pertaining to the competition should be kept on file for
at least 3 years.
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Summary Selection Process
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Application forms should only seek information that is relevant to
the ability of the person to do the job
Applicants should be asked to specify if they have any special needs
prior to the interview/assessment process.
The interview board should be familiar with the equality legislation
and receive guidance on how to conduct interviews in a nondiscriminatory manner
Applicants should not be asked questions unrelated to the job
Selection criteria should be based on the requirements of the job as
set out in the job description and person specification
Selection criteria should be devised prior to applications being
reviewed
Interview boards should be composed of more than one person and a
gender balance, where practicable, should be maintained
A formal marking system should be used to evaluate candidates
against the selection criteria
Marks must be accompanied by evidence of how they were allocated
based on the information provided in the application form and the
applicant’s performance at interview
The marking system must be applied consistently
Interview notes should be retained for at least 3 years
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5
The Follow Up
Check references
Pre-employment medicals
Make an offer of employment
5.1.1 Check References
It is normal practice to require satisfactory references before making an
offer of employment to a candidate. The communication that issues to
the referee(s) should not seek any information which could be
subjectively adjudged to constitute discrimination.
5.1.2 Pre-employment Medicals
The final stage of the recruitment process normally requires a candidate
to undergo a medical/occupational health assessment to ensure that
they are medically fit to undertake all of the duties of the job.
The assessment process may reveal medical conditions which may or
may not have implications for the capability of the person to carry out
the job. The assessment report however is only concerned with the
ability of the prospective employee to carry out the job and not his/her
general health. It is therefore important to provide specific information
about the duties and requirements of the job.
Under the Employment Equality Act 1998 and 2004 the employer is
obliged to provide reasonable accommodation to enable a person with a
disability to perform the duties of the job to the required standard
(unless the measures would impose a disproportionate burden on the
employer). “Appropriate measures” provided for under the Act may
include the adaptation of premises and equipment, patterns of working
time, distribution of tasks or the provision of training or integration
resources. The provision of such measures must result in the person
being fully competent and capable of performing the duties attached to
the job, otherwise there is no obligation to recruit or retain the person
in employment.
The case of A computer component company and A Worker (ED/00/08 –
Det013-EED013) concerned the issue of the discovery of a disability as
the result of a medical examination. The employee was initially
employed in a temporary capacity and was subsequently offered a
permanent appointment subject to a satisfactory medical assessment.
The medical assessment revealed that the employee had epilepsy and
the company terminated her employment. The Labour Court found the
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complainant was dismissed by the respondent by reason of her
disability. In its decision the Court referred to the fact that the
company did not consider undertaking any form of safety assessment
which could have identified the extent, if any, to which the work
environment presented danger to the worker and how any such danger
could be minimised. Furthermore, the company did not discuss its
concerns with the worker and did not advise her to obtain a second
opinion from the neurologist as had been suggested by the company
doctor.
5.1.3 Monitoring the selection process
It is useful to assess the experience of candidates from within each of
the nine grounds who participate in the selection process. Monitoring
the selection process from an equality perspective will test the
accessibility of the interview process and the ability of the organisation
to draw from a wider pool of candidates. It will also identify any
barriers which may have inadvertently arisen.
Key Points Follow Up




Requests for reference should be structured and focused on the
applicants ability to perform the job effectively
The medical practitioner conducting the pre-employment medical
should be given a copy of the job description
The pre-employment medical is only concerned with the applicants
ability to carry out the duties of the post
An employer is obliged to take “appropriate measures” to enable a
person who has a disability to be fully competent and capable of
performing the duties attached to the job.
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6
Promotion
All employees should be afforded the same opportunities to develop full
and rewarding careers within the organisation and should be encouraged
to prepare, plan and consider themselves for promotion. There are
several factors which contribute to a person’s ability to progress in
employment and gain promotion. These include:




Regular and constructive performance feedback
An employee’s level and quality of experience
Access to training and development opportunities
Positive action
All employees should be provided with the same opportunities for
training and work experience. Managers should monitor up-take of
training and other opportunities for development to see if there is
variation between different groups of employees in availing of such
opportunities. Managers should encourage those from less represented
groups to participate in training courses and if there is any variation in
participation rates the barriers should be identified.
In case number DEC – E2004 – 051 the complainant alleged
discrimination on the grounds of gender, marital status, sexual
orientation, age and race when he was not offered a position of
Manufacturing Technician Equipment (MTE) and Manufacturing
Technician Process (MTP) or Supervisor. The MTE and MTP positions
were in another section of the business and whilst not promotional posts
they were considered “a developmental opportunity for a MTO”. There
was no formal application or interview process for vacancies in this area
but rather employees expressed their interest to their line manager who
in turn enabled them to gain the necessary skills and experience to gain
a position in this area. The Equality Officer found that this process was
not transparent and could possibly contain a “high element of
favouritism”.
Similarly the Supervisor Grooming Programme, which is a training
programme for MTOs to gain further experience and opportunities and
form a pool of candidates for Supervisor vacancies, was filled on the
basis of nomination. The Equality Officer recommended that open and
transparent procedures be put in place for the appointment of staff to
positions of MTE and MTP and for the granting of access to staff to the
Supervisor’s Grooming Programme. This could be done by the way of
advertising the vacant positions, conducting interviews and retaining
notes from interviews for inspection in the event of a complaint of
discrimination.
The Employment Equality Act 1998 and 2004 provides that
employers can take steps with a view to ensuring full equality in
practice between employees on all of the nine grounds. Positive
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action to this end includes ensuring that employees have the
relevant training and work experience opportunities to “prevent
or compensate for disadvantages” in their professional career. It
also includes proactively seeking applications from individuals
covered by the nine grounds when promotional opportunities
arise.
Promotion and internal job opportunities should be communicated to all
potential applicants2. Considerable ill feeling can be generated if
existing employees are not informed about suitable vacancies or if they
first hear about the job from a newspaper advertisement. Employees
on maternity leave, adoptive leave, parental leave and carer’s leave
should be informed of any vacancies that arise during their absence.
In Wilson v The Adelaide and Meath Hospital (DEC-E2002-025) the
complainant, Ms Wilson, alleged that she had been discriminated
against on grounds of gender in respect of access to the position of
hospital porter following recruitment campaigns by the hospital in June,
1998 and February 2000. In her decision the Equality Officer noted that
the second competition was advertised internally only in areas
frequented by porters (which were not frequented by Ms Wilson) and
that it was also circulated on internal e-mail, a facility to which she has
no access. The Equality Officer expressed concerns over the manner in
which the hospital arranged circulation of internal competitions and
suggested the hospital “review its practice in this regard and take
appropriate steps to ensure the fullest possible notification of
competitions throughout the hospital.”
Several forms of communication should therefore be used to notify
applicants about job opportunities. This may include e-mails, letters,
memos, and advertisements on the intranet. Managers should ensure
that all staff are informed vacancies for which they are eligible to
apply.
As with the standard recruitment and selection process, the selection
criteria should be based on a clearly written job and person
specification which set out the main duties of the job and the essential
skills needed to perform the job effectively. The manager has a key
role in revising the job description and person specification and
identifying appropriate selection criteria.
2
The Protection of Employees (Fixed-Term Work) Act 2003 provides that the employer must inform
temporary/fixed term employees of all relevant permanent vacancies which arise in the organisation. In
order for employers to comply with this requirement, permanent vacancies must be advertised in a manner
which all temporary/fixed-term staff can access (for further details refer to Guidelines on Salient
Provisions of Protection of Employees (Fixed-Term Work) Act 2003).
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It is important that marking systems are devised prior to the selection
process and that the interview board apply the marking system fairly
and consistently to all candidates. The cases of McGinn v Daughters of
Charity of St Vincent de Paul (DEC-E2002-054) and Burke v South
Eastern Health Board (DEC-E2003-014), which both involved
promotional competitions, illustrate the importance of marking
systems:
In the case of McGinn v Daughters of Charity of St Vincent de Paul
(DEC-E2002-054) the complainant contended that the marks allocated to
her at the interview were a not fair and reasonable reflection of her
vast experience, qualifications and abilities. The candidates were
assessed on qualifications, experience/professional knowledge,
core/special competencies and personal skills. The Equality Officer
found that in marking the candidates under the headings of
qualifications and experience the Interview Board failed to recognise
the complainant’s higher qualifications and greater experience. There
was also a lack of transparency in the marking of core/special
competencies. The successful candidate was awarded extra marks for
having previous management experience when this applied to both
candidates.
The Labour Court upheld the Equality Officer’s decision and also
commented on the manner in which candidates were marked. “The
individual members did not mark candidates. It appears that at the
end of the process there was a discussion between the members of the
board and an overall marking was agreed under each of the headings
identified on the candidate assessment form. The comments were then
added but there is no documentary evidence as to the basis for those
comments”.
The case of Burke v South Eastern Health Board (DEC-E2003-014)
involved the interview process for the post of Director of Nursing. The
Equality Officer commented on the fact that marks awarded under core
competencies and special competencies, which represented in excess of
70% of the total marks, were not broken down and this afforded the
interview board a large degree of discretion. The Equality Officer
recommended that in “future competitions the respondent should set
out in detail the markings to be awarded under the various criteria and
this should be done in advance of applications being received for the
competition”.
A copy of all documentation relating to the internal/promotional
competition should be retained, as this information may be required in
the event of a claim of discrimination.
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Summary Follow Up
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Provide all employees with the same opportunities for training and
work experience
Encourage all staff to prepare, plan and consider themselves for
promotion
Communicate promotional opportunities to all employees
Ensure openness, consistency and fairness in the promotion process
Ensure records are kept of all promotional competitions
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