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by Barry Walsh, Partner and Head of the Employment Team at McDowell Purcell.
It is well known by HR practitioners that an employer’s recruitment and promotion decisions are regulated by the Employment Equality Acts. In the main, this means that in recruitment for new employees and in competitions for promotions and other internal appointments, an employer must not discriminate on the basis of any of the protected grounds under the Employment Equality Legislation.
Case law and practice shows that, in many cases, this means that employers may be forced to justify decisions to unsuccessful applicants on how the selection process was conducted and how the selection decision was actually made.
It is notable that the Irish university sector has faced some challenges with promotion decisions, with a number of high profile cases of alleged gender based discrimination in particular, the most notable being the Sheehy Skeffington case from the Equality Tribunal 2014[1]. That case also indirectly led to promotion settlements with five other female academics at the same university.
While readers may accordingly perceive that many such cases involving Irish universities are gender related, some more recent cases involve alleged age discrimination.
The most recent age discrimination case* against an unnamed Irish University is notable in a number of respects but particularly for the level of scrutiny applied by the WRC Adjudication Officer to the internal competition process.
The burden of proof in such cases is always on the complainant (unsuccessful applicant or, in this case, employee). Complainants in such cases must do something to shift the burden of proof to the employer. In this case, the employee alleging age discrimination succeeded in shifting the burden of proof in a number of ways. The most notable of these was because of what the WRC found were subjective selection criteria.
In determining that the burden of proof had moved to the employer to justify the decision, the WRC found that the employer was unable to do so. Accordingly the WRC ruled in favour of the complainant.
The remedy here was compensation and helpfully the WRC Adjudicator pointed out that the award of €35,000 was equal to six months remuneration. This is particularly notable as it can be difficult for outside observers to assess the relative amount of the award in certain cases.
This case is also different from the previous WRC decision we reported on above (see above link) where the remedy included an order of retrospective promotion plus compensation, which was a much more serious remedy in that situation.
Take-away points for any employer, including Irish Universities, is to be as precise as possible in the selection criteria and furthermore to be able to justify the actual decision.
Employers should be under no illusion about the WRC’s ability and willingness to very carefully stress test the recruitment or internal competition process. The level of detail required by an employer to defend such cases can be very considerable.
* ADJ-00003593
[1] Micheline Sheehy Skeffington v NUI, Galway DEC-E2014-078
About the author
Barry Walsh is Partner and Head of the Employment Team at McDowell Purcell. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.
