Guide To Employers On Equal Opportunities Aspects Of Recruitment And Selection

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.

2 1. 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.

3 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

1.0.1 Identify the need When a vacancy arises the following should be considered:

. 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.

1.0.2 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:

4 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:

. 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.

1.0.3 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

6 and 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

 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.

7 2. The Selection Process

Application Forms / Shortlist applicants

Interview

Determine who the most suitable candidate is based on the selection criteria

2.1.1 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.

8 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 non- obligatory 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.

2.1.2 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 off- putting 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.

9 . 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 home-school 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.

10 Nevertheless the Labour Court 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-E2004- 058) 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.

11 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

12 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.

13 Summary Selection Process

 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 non- discriminatory 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

14 5 The Follow Up

Check references

Pre-employment medicals

Make an offer of employment

2.1.3 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.

2.1.4 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

15 the 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.

16 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

17 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).

18 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.

19 Summary Follow Up

 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