Applicant Discriminated on Age Ground after Being Asked About her Date of Birth

by Greta Siskauskaite, Solicitor, Employment law at Fieldfisher LLP (Ireland)

A Workplace Relations Commission (“WRC”) Adjudicator has awarded €5,000 to an applicant who was ultimately unsuccessful during a recruitment process.

In this case (ADJ-00039736), the Complainant claimed that she was discriminated against on the grounds of age when she applied for employment with the Respondent.

The Respondent did not attend the hearing and so the Complainant’s evidence was uncontested.

Facts

The Complainant applied for the ‘Twilight Shift’ position in the Respondent’s nursing home, and was called for interview.

She recalled that when she arrived at the premises, she waited for an hour to be called and that no other applicants showed up for interviews during that time.

After the interview, she was offered the position and she was asked to fill in some forms. One of the forms required her date of birth and she also was required to disclose when she finished her Leaving Certificate (1986).

The Complainant was subsequently notified by the Respondent that she was not successful due to the high quality of applicants.

The Complainant, therefore, formed the opinion that the Respondent changed its mind in relation to her suitability for the position due to her age.

Decision

The WRC Adjudicator held that the Complainant gave “honest and cogent” evidence on the matter and noted that the interview results marked her around 90% in her scores. In the circumstances, the WRC Adjudicator was satisfied that the Complainant had discharged the burden of proof. The onus had shifted to the Respondent, but it was not present at the hearing. The WRC concluded that the Complainant was discriminated against on the age ground and awarded her €5,000.

Commentary

The Respondent’s non-attendance at the hearing in this case naturally did not assist it in its defence.

It is possible that the outcome could have been different had there been an explanation on the above events put forward by the Respondent during the hearing. Seeking information regarding someone’s age (or date of sitting an exam) would certainly not be a good idea during an interview process but after they had been offered employment it might potentially be explainable as something required to manage the employment relationship such as for pension purposes, to manage retirement ages (that’s another story in itself!) or for other legitimate reasons.

This is a lesson to employers that confirmation that an applicant is successful during a recruitment process should be meaningfully and fully considered and any reversal of that decision would require very careful explanation.

More generally, the usual best practice recruitment practices should be applied, such as:

• Ensuring that at least two employees from the organisation are present during all interviews;
• Ensuring that a fair scoring system is applied;
• Ensuring that notes of all interviews are taken; and
• Ensuring that a decision to hire / decline an applicant can be objectively justified by the organisation.

Remember also that data subject access requests by employees and unsuccessful applicants are now quite common and information gained can be relied on to assist with legal claims.

About the author

Greta Siskauskaite specialises in the area of employment law and advises on both contentious and non-contentious employment matters at Fieldfisher LLP (Ireland).

Greta provides both commercial and best practice advice to employers and employees on all matters relating to employment law. This includes bringing/defending claims to the Workplace Relations Commission/Labour Court, advice on contracts and employee handbooks, internal company procedures, discrimination, redundancy and TUPE.

Greta’s experience includes assisting both private and public sector clients.
Greta regularly attends Employment Law Seminars to ensure that she remains up to date on relevant legislative developments.

Greta hold’s a Bachelor of Business and Law Degree from NUIM and a Diploma in Employment Law from the Law Society of Ireland.