Recruitment Do’s and Don’ts - A Costly Question

Last month, the Workplace Relations Commission (the WRC) found that the Minister of State with special responsibility for Training, Skills, Innovation, Research and Development, Mr John Halligan, illegally discriminated against a potential employee during a recruitment interview to fill the role of Private Secretary (ADJ-00005366).

The WRC found that the Minister's line of questioning during the recruitment interview had tainted the interview process and amounted to discrimination on grounds of family status against the female candidate. In particular, the Minister reportedly made the following comment during the interview:  “I know I shouldn’t be asking this, but . . . are you a married woman? Do you have children? How old are your children”. When the candidate confirmed she was married with two children, the Minister noted: “you must be very busy”.

The female candidate was awarded €7,500 by way of compensation as a consequence of the comments.

The law is not new in this area, but such comments are clearly in contravention of the Employment Equality Acts 1998 – 2015 (the Acts). Minister Halligan’s remarks necessarily undermine any assumption that, in 2017, everyone has a working understanding of what may or may not constitute discrimination. This case underlines the importance of adequately training and fully preparing managers, and those involved in recruitment decisions, in advance of a recruitment process to ensure they are wholly aware of the requirements under the Acts in terms of what questions they may or may not ask of candidates to sidestep any discrimination landmines.

What does the law say?

Under the Acts, discrimination is defined as treating a person "less favourably than another person is, has been or would be treated in a comparable situation" on one or more of the protected grounds.  The nine protected grounds are set out under the Acts as follows:

• Gender
• Civil Status
• Family Status
• Sexual orientation
• Religion
• Age
• Disability
• Race
• Membership of the Traveller Community

The Acts also prohibit indirect discrimination i.e. when practices and policies on the surface do not appear to discriminate but, in practice, have an adverse impact on a particular group of persons.  Significantly, while direct discrimination is never justifiable, indirect discrimination can be objectively justifiable if it serves a legitimate aim and the measures of achieving the aim are both necessary and appropriate. For example, it may be legitimate to require a candidate to have a certain number of years' experience for a particular position notwithstanding the fact that this may adversely impact younger candidates for the role. On the other hand, depending on the nature of the role in question, it may not be objectively justifiable to require a certain level of English (a requirement which consequently may adversely impact foreign applicants) where this skill is not, in and of itself, necessary for the job in question.

The perils at advertising stage

Despite the somewhat misleading title of the Acts', which at face value would seem to suggest they apply only to actual employees, it is important to be aware that the Acts also apply to prospective employees during a recruitment process.  Even when advertising for a role, employers must take care to avoid using language or terminology which could be regarded to be discriminatory. 

Ryanair learnt this lesson the hard way a number of years ago when it was found to have discriminated on the basis of age by advertising for an air stewardess role seeking "young and dynamic professionals" [emphasis added]. Although Ryanair argued that its advertisement referred to candidates being "young in spirit", the Equality Tribunal disagreed, finding that the advertisement excluded middle-aged or old candidates and ordered £8,000 in compensation.

So how were Minister Halligan's comments discriminatory?

In recent media interviews following the publication of the decision, Minister Halligan sought to justify his questions on the basis that he was “simply trying to put the interviewee at ease. I wanted to assure her that I am as flexible as possible with members of my team with any external or non-work commitments they may have”.

While that may have been the Minister’s genuine intent, it is important for employers to be clear that such intent is not a defence or even a mitigating factor under the Acts when determining whether discrimination has occurred. Indeed the Minister has not been able to confirm whether he asked any other candidates the same questions. Questions of this nature undermine the purpose of the Acts, which is to prevent interviewers obtaining any information at the decision-making stage that may colour their consideration of a candidate in relation to any of the nine protected grounds. While, on its face, asking someone about their family status may appear to be a benign background query, such questions can lay the ground work for a successful claim of discrimination as outlined above. Just as an individual's sexual orientation or membership of the Traveller Community would be irrelevant to their ability to perform a certain role, so too is their family status.

Interview dos and don'ts

So what lessons can be learned from Minister Halligan's interview and the consequent WRC decision?   Employers should consider the following steps when navigating the legal minefield of recruitment to mitigate the risk of a claim for discrimination:

1. Ensure that interviewing staff are appropriately trained in the provisions of employment equality legislation and the issues surrounding unconscious bias in interviewing candidates for a particular role. As seen in Minister Halligan's case, a lack of ill intent will not save an employer from a successful claim of discrimination;

2. Ensure that the wording of the job description/specification indicating the type of candidate who should apply, could not be interpreted to be discriminatory;

3. Do not require applicants to provide details of their race, gender, age (or any other potentially discriminatory ground) via the application form;

4. Adopt a consistent approach when reviewing job applications and shortlisting candidates for interview;

5. A pre-interview meeting should be scheduled to draw up questions to be asked of every candidate which will focus on the skill sets necessary for the job advertised and avoid  asking subjective questions about a candidate's personal life, for example, what their childcare arrangements are;

6. To the extent possible, adopt a uniform approach to asking the questions;

7. Discrimination can also occur before or after an interview.  Never ask inappropriate questions when taking a candidate to the interview room or showing them to the lift after the interview has concluded;

8. Bear in mind that any notes made at interview stage may be potentially discoverable and take care to avoid taking notes which may indicate some element of discrimination or bias. If adopting a point scoring system, ensure that the selection criteria are objective and applied consistently to each interviewee; and

9. In compliance with data protection law, ensure that interview records are only retained where it necessary and proportionate to the purposes for which they are created.  In most cases, records should be retained for 1 year following the conclusion of the process as candidates have a 6 month period (or 12 month period where "reasonable cause" for not bringing the claim is shown) following the conclusion of the recruitment process (and act complained of) to bring a potential discrimination claim. 

Takeaway for HR specialists

It's worth noting that the complainant in the above case was sharply critical of the HR official in attendance at the interview for failing to intervene when Minister Halligan proceeded with the discriminatory line of questioning.  This point was expressly noted by the Adjudication Officer in her decision who stated that, while the HR official could not have known the Minister was going to ask a series of questions so out of the norm, it was "regrettable" that they did not intervene. While such intervention would arguably place any HR official and interviewer in a very uncomfortable position, this position can be avoided if an agreed line of questioning is discussed with the interviewer beforehand.

Consequences

Under the Acts, where discrimination is found to have occurred against a prospective employee, the maximum award is capped at €13,000. However, where discrimination is found to have occurred against an internal candidate e.g. a current employee who is being interviewed for a new role within their current employment, the maximum award is up to two years' remuneration (regardless of their length of service) and is potentially uncapped if the discrimination relates to gender (including pregnancy related discrimination).

Whatever the intent of any questions or comments before, during or after job interviews, there are "no go" areas that are set out in the Acts.  For some it is simply a matter of common sense.  For others, decisions such as that in respect of Minister Halligan's very public comments should give employers pause for thought at recruitment stage.  

For more information please contact Duncan Inverarity, Partner and Ciaran Ahern, Associate – A&L Goodbody Employment Practice Group.

Date Published: 21 November 2017