The Workplace Relations Commission (WRC) has found in favour of an employee who was indirectly discriminated against on the ground of age contrary to the provisions of section 8 of the Employment Equality Act 1998 when applying for an internal job position.
The complainant was a Higher Executive Officer in the Civil Service. In 2019, she applied for a senior managerial role which was advertised internally. However, her application was rejected and she was not shortlisted for an interview.
The WRC followed the legal test laid down by the Labour Court in Gillian v Department of Health and Children that where the complainant establishes in fact that the employee was presumably discriminated, the employer must prove the contrary. It is sufficient that the presumption of discrimination lies within the range of inferences.
The complainant argued that she was discriminated against on the grounds of age as her age was easily identifiable from her application, giving rise to an unconscious bias favouring younger candidates. Moreover, the fact that the interview board did not apply best practice nor apply scores to determine which candidates to shortlist, as well as the fact that the interview board failed to keep adequate records of the basis for their decision, added to a finding that she was discriminated against.
In addition, the complainant argued that the data that was given by the interview board clearly demonstrated that the older candidates had a significantly lower chance of being shortlisted.
The respondent refuted the complainant’s claim, stating that the decision to shortlist candidates was based entirely on the application submitted by each candidate and the panel were trained in respect of unconscious bias and discrimination, and were of different gender and age groups.
The WRC were not satisfied that the respondent had provided sufficient evidence to rebut the presumption of discrimination. In fact, the lack of transparency on part of the respondent concerning the shortlisting procedure adopted by the board and the reason submitted for not shortlisting the complainant further added to a finding of discrimination.
The WRC were 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 age range of 50-65 had a significantly lower chance of being shortlisted. Taking everything into account, the WRC concluded that the respondent had discriminated against the complainant on the ground of age, contrary to the provisions of section 8 of the Employment Equality Act 1998 arising from unintended indirect discrimination.
The WRC ruled that the complainant lost an opportunity to compete at the interview stage and therefore, found that compensation of 26 weeks remuneration was just and equitable. However, because that figure fell short of the maximum statutory remedy of €40,000, the WRC ordered the respondent to pay the complainant the sum of €40,000.
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