In fact, developments in this area have prompted the Office of the Director of Equality Investigations to announce recently that there was a “huge and continuous growth in the number of complaints of discrimination” being brought under our equality laws. A significant proportion of these complaints arise from employers’ recruitment and selection practices. For example Ryanair’s recent search for “young and dynamic professionals” left them facing an IR£8,000 (€10,000) bill and an order to sort out their approach to recruitment. Trinity College once again found itself in trouble in this area due to an interview board’s decision to label job applicant Lisa Rodmell as the ‘lady electrician’, Whilst Clonmel Healthcare’s interview discussion with Majella McDonald about her marital and family circumstances, resulted - on the direction of the Equality Officer - in them having to pay for her ‘distress’.

One of the most notorious cases to have arisen recently concerned the appointment of a consultant obstetrician/gynaecologist to the Mater and Rotunda hospitals. Such was the nature of the process that both the Equality Officer and the Labour Court rebuked the hospitals for their interviewers: “lack of any notes, failure to agree criteria prior to interview, and the lack of any transparency in relation to the selection procedure”. In taking the case, Dr. Noreen Gleeson claimed that one of the interview board made the comment: "That's fine, sink the sisters", after Gleeson responded that she wouldn’t be interested in doing voluntary work in the hospital’s Sexual Assault Treatment Unit. Interestingly enough, male applicants weren’t asked whether they would do this work. Furthermore, the interview board ‘complimented’ Dr. Gleeson for having “had her babies”! Not surprisingly the Court ordered the hospitals to pay Gleeson IR£50,000 (€63,500) compensation.

Staff recruitment and selection continues to feature amongst the most problematic issues facing employers today. Despite recent downturns in the dotcom and telecommunications arena, it is predicted that this problem will persist.

So for the employer, it’s hard enough to find people to apply. But it’s becoming even harder to ensure that the applicants are being asked the right questions in the right way. The threat of legal action from getting it wrong is now more real than ever before.

New Legal Obligations
A good selection procedure should result in the appointment of the best qualified and most suitable candidate to the job. Ideally, the selection process will be driven by the key demands of the job, as opposed to bias or discrimination on the basis of the candidate’s sex, marital status, family status, sexual orientation, religion, age, disability, race or membership of the travelling community. Under the Employment Equality Act, 1998, discrimination under these headings is prohibited in job ads; by employment agencies acting on behalf of employers; in the arrangements which an employer makes to recruit new employees and in the opportunities provided for promotion.

Consequently employers must be careful that questions which are actually discriminatory, or which could give rise to an inference of discrimination under these headings, are not posed. So questions relating to sex, marital status, age, family responsibilities, reactions of spouse etc. should be avoided - both on the application form and at interview. The real danger is that they may be taken as an indication that the applicant must satisfy conditions which would not apply to single people, persons of a different sex, race or age bracket etc.

Explain Yourself
As the new Equality Act now offers protection on a range of other grounds - in addition to sex and marital status e.g. race, age, disability - it is likely that the rising trend reported by the Equality Authority will continue. Whilst this Act forces employers to explain themselves in the event of a legal challenge, it is also interesting that in 1998 the Freedom of Information Act took effect. This gives job applicants ‘the right to be given reasons for decisions taken by public bodies that affect them’.

Arising from cases already brought under the Act, the Information Commissioner has determined that shortlisting boards and interviewers must make the notes in respect of unsuccessful interviewees available to the candidates, provide access to the criteria and marking schemes used by the board and advise interviewees of their order of merit and actual marks. This practice will extend to private sector employers shortly, when the EU Directive on Data Protection, which provides for access to manual files, is introduced to our statute books.

What Should Be Done?
To ensure that the employer stays on the right side of the law at interviews, whilst at the same time getting the best person for the job, it is recommended that:

• Consideration be given to the job demands and the ‘ideal’ type of person suitable to same. Accordingly a marking scheme should be devised, with the bulk of the marks available to those key criteria set down in this scheme.
• Interview questions should refer to the requirements of the job. Care should be taken that questions relating to marriage plans, family planning intentions, children, age, religion etc. should not be asked. Where it is necessary to assess whether personal circumstances will affect performance of the job (e.g. where the job involves unsocial hours or extensive travel), relevant questions, where they are deemed absolutely necessary, should be asked equally of all candidates, and the answers should be evaluated on the same basis.
• Where possible, interview boards should not be comprised of persons of one sex only, and all persons who conduct or participate in interviews should be properly trained in the area.
• Records of interviews should be kept, showing clearly why applicants were or were not selected.

As time moves on, the increasing confidence of the Irish labour force sees them less inclined to tolerate biased, arbitrary or capricious employer decisions. For the image conscious employer, coping with the financial and publicity consequences of legal action may well prove another cost they can do without.

Dr. Gerard McMahon is a lecturer in Human Resource Management at the Faculty of Business, Dublin Institute of Technology, and is the Chartered Institute of Personnel & Development’s specialist tutor in Selection Interviewing.

A version of this article appeared in The Sunday Business Post, on 19 September 2001.

Recruitment and Selection: Getting It Right
Gerard McMahon
€40 pb.