Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Prospective Employee awarded €8,000 under Employment Equality Acts
Adjudication Decision Reference: ADJ-00004761
The prospective Employee alleged that he was discriminated against by a prospective Employer based on grounds of disability which he disclosed as part of his application. The Complainant was stunned when he was unsuccessful in his application for the position of Community Employment Supervisor in a Charity working in the disability sector. The Respondent informed the Complainant that he failed to be shortlisted for an interview ‘due to the large number of applicants with sector specific knowledge and experience.’ However, the Complainant felt as if he had the relevant experience to fulfil the role, so he proceeded to contact the Respondent to further question their reasons for not shortlisting him for an interview.
It was only after the Complainants application was reviewed by the Respondent, that it was discovered that he had been incorrectly scored on the marking sheet. It was identified that if the correct marks were originally afforded, the Complainant would have been called for an interview.
The Respondent submitted that the error was unintentional and was in no way connected to the disability the Complainant. However, the Complainant alleged that he was treated less favourably than his viable comparator.
The Adjudication Officer highlighted the fact that the prospective Employee volunteered the information regarding his dyslexia and Autism (Asperger’s Syndrome) in his personal statement on the last page of his CV. The Respondent argued that they had failed to progress to the paragraph where the Complainant disclosed his disability in his CV, and the failure to mark his application correctly was purely down to human error.
In determination of its findings, the Adjudication Officer found that the prospective Employee had "satisfied the burden of proof in establishing a prima facie case of discrimination given the selection criteria for the short listing process were applied erroneously and inconsistently to him" and found the Respondent to have discriminated against the Complainant on the basis of disability.
The Complainant was awarded €8,000 in compensation along with an order made for the Respondent to review their Recruitment Policy and Procedure and to ensure those involved in the Recruitment and Selection process receive the appropriate training in Equality and Equal Opportunities.
As outlined within Employment Equality Legislation, a recruiting Organisation has a duty not to discriminate. Any inference of discrimination places the burden of proof on the Organisation to demonstrate that reasonable steps were taken to prevent discrimination, and to show that fair and transparent procedures were used in the process. Each stage of the Recruitment and Selection process, including the shortlisting stage as noted here, presents a number of serious potential pitfalls to Employers in meeting these requirements but when undertaken appropriately ensures not only the best hiring decision (if any) is made, but ensures discrimination, whether intentional or otherwise, is less likely to occur.
Employee asked her Intentions Regarding Retirement not Discriminated Against
Adjudication Decision Reference: ADJ-00003662
The Complainant undertook her annual performance review. In the course of the review she was asked about whether she had any plans to retire. She responded that she had no plans to retire. The Complainant was aged sixty years old at this time. At her annual review, the Complainant was appraised very positively.
Subsequently, the Complainant asked a number of colleagues as to whether they had been asked a similar question. They all advised they had not, including some in the same age cohort as the Complainant. She raised the matter with her Manager.
The Respondent submitted at the adjudication hearing that the question asked is part of its workforce planning research and preparations being undertaken under the direction of its HR Department. The Respondent advised that Managers in certain areas were asked to identify numbers of possible future departures from the service to assist with its forward planning. The necessity arises it argued because a significant number of previous retirees, opted to do so before reaching the retirement age of sixty-five. While it is a large department the total number of those retiring the previous year represented about 12% of total workforce numbers and therefore the task of planning involves gathering as much information as possible about future retirement and its impact on the service as there continue to be some restrictions on recruitment.
The Respondent confirmed that the Complainant’s management was provided with a list of the Employees within the cohort 60-65 (including the Complainant) with a request that it ascertain their future intentions. In finding in favour of the Respondent and finding no basis for the complaint of discrimination, the Adjudication Officer noted that no action followed for the Complaint which could give rise to a conclusion that the question had adverse consequences for the Complainant. On the contrary, it was noted that the Complainant achieved the second highest rating possible to achieve as part of that particular performance review process.
This is an interesting case. Whilst the Employer was not seeking to enforce retirement age in this case, the area of retirement is an area which continues to evolve and can represent a significant challenge for Employers who seek to ascertain an Employees age or enforce retiring an Employee on the grounds of age.
The Employment Equality Acts 1998-2012 prohibit any unfavourable treatment by an Employer based on any of the nine protected grounds. No discrimination should occur in relation to these grounds, including age. In addition, the Equality (Miscellaneous Provisions) Act 2015, effective as of January 1st 2016, specifically provides the requirement for Employers to objectively justify a mandatory retirement age linked to a legitimate aim. Such objective and legitimate aims are narrowly interpreted in case law.
In this instance, whilst it was not disputed that the Complainant was being advised as to when she would be required to retire, the Adjudicator accepted that the aim of the Employer in seeking to ascertain future potential retirements within the workforce as part of its forward resource planning served as a legitimate rationale for asking the Employee as to her future intentions.
Adjudication Decision Reference: ADJ-00004761
The prospective Employee alleged that he was discriminated against by a prospective Employer based on grounds of disability which he disclosed as part of his application. The Complainant was stunned when he was unsuccessful in his application for the position of Community Employment Supervisor in a Charity working in the disability sector. The Respondent informed the Complainant that he failed to be shortlisted for an interview ‘due to the large number of applicants with sector specific knowledge and experience.’ However, the Complainant felt as if he had the relevant experience to fulfil the role, so he proceeded to contact the Respondent to further question their reasons for not shortlisting him for an interview.
It was only after the Complainants application was reviewed by the Respondent, that it was discovered that he had been incorrectly scored on the marking sheet. It was identified that if the correct marks were originally afforded, the Complainant would have been called for an interview.
The Respondent submitted that the error was unintentional and was in no way connected to the disability the Complainant. However, the Complainant alleged that he was treated less favourably than his viable comparator.
The Adjudication Officer highlighted the fact that the prospective Employee volunteered the information regarding his dyslexia and Autism (Asperger’s Syndrome) in his personal statement on the last page of his CV. The Respondent argued that they had failed to progress to the paragraph where the Complainant disclosed his disability in his CV, and the failure to mark his application correctly was purely down to human error.
In determination of its findings, the Adjudication Officer found that the prospective Employee had "satisfied the burden of proof in establishing a prima facie case of discrimination given the selection criteria for the short listing process were applied erroneously and inconsistently to him" and found the Respondent to have discriminated against the Complainant on the basis of disability.
The Complainant was awarded €8,000 in compensation along with an order made for the Respondent to review their Recruitment Policy and Procedure and to ensure those involved in the Recruitment and Selection process receive the appropriate training in Equality and Equal Opportunities.
As outlined within Employment Equality Legislation, a recruiting Organisation has a duty not to discriminate. Any inference of discrimination places the burden of proof on the Organisation to demonstrate that reasonable steps were taken to prevent discrimination, and to show that fair and transparent procedures were used in the process. Each stage of the Recruitment and Selection process, including the shortlisting stage as noted here, presents a number of serious potential pitfalls to Employers in meeting these requirements but when undertaken appropriately ensures not only the best hiring decision (if any) is made, but ensures discrimination, whether intentional or otherwise, is less likely to occur.
Employee asked her Intentions Regarding Retirement not Discriminated Against
Adjudication Decision Reference: ADJ-00003662
The Complainant undertook her annual performance review. In the course of the review she was asked about whether she had any plans to retire. She responded that she had no plans to retire. The Complainant was aged sixty years old at this time. At her annual review, the Complainant was appraised very positively.
Subsequently, the Complainant asked a number of colleagues as to whether they had been asked a similar question. They all advised they had not, including some in the same age cohort as the Complainant. She raised the matter with her Manager.
The Respondent submitted at the adjudication hearing that the question asked is part of its workforce planning research and preparations being undertaken under the direction of its HR Department. The Respondent advised that Managers in certain areas were asked to identify numbers of possible future departures from the service to assist with its forward planning. The necessity arises it argued because a significant number of previous retirees, opted to do so before reaching the retirement age of sixty-five. While it is a large department the total number of those retiring the previous year represented about 12% of total workforce numbers and therefore the task of planning involves gathering as much information as possible about future retirement and its impact on the service as there continue to be some restrictions on recruitment.
The Respondent confirmed that the Complainant’s management was provided with a list of the Employees within the cohort 60-65 (including the Complainant) with a request that it ascertain their future intentions. In finding in favour of the Respondent and finding no basis for the complaint of discrimination, the Adjudication Officer noted that no action followed for the Complaint which could give rise to a conclusion that the question had adverse consequences for the Complainant. On the contrary, it was noted that the Complainant achieved the second highest rating possible to achieve as part of that particular performance review process.
This is an interesting case. Whilst the Employer was not seeking to enforce retirement age in this case, the area of retirement is an area which continues to evolve and can represent a significant challenge for Employers who seek to ascertain an Employees age or enforce retiring an Employee on the grounds of age.
The Employment Equality Acts 1998-2012 prohibit any unfavourable treatment by an Employer based on any of the nine protected grounds. No discrimination should occur in relation to these grounds, including age. In addition, the Equality (Miscellaneous Provisions) Act 2015, effective as of January 1st 2016, specifically provides the requirement for Employers to objectively justify a mandatory retirement age linked to a legitimate aim. Such objective and legitimate aims are narrowly interpreted in case law.
In this instance, whilst it was not disputed that the Complainant was being advised as to when she would be required to retire, the Adjudicator accepted that the aim of the Employer in seeking to ascertain future potential retirements within the workforce as part of its forward resource planning served as a legitimate rationale for asking the Employee as to her future intentions.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
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