Friday, April 23, 2021
As published on Legal Island, 19 April 2021.
In the second of a new series of articles on Legal Island, head of employment, Patrick Walshe, addresses key issues that often arise in relation to recruitment exercises including the importance of ensuring such processes are non-discriminatory and objective, taking up references and doing background checks and interview panels.
Do employers have a free hand when deciding who to hire?
Largely. There is a prohibition on discrimination in hiring staff but that aside, Irish employers can generally choose who they wish to employ.
What is the prohibition on discrimination?
The Employment Equality Act, 1998 prohibits discrimination in the workplace. The scope of the Act is wide enough to apply to hiring. In practical terms, this means that an employer cannot discriminate on any of the grounds laid out in the Act.
What are the discriminatory grounds?
There are nine of these:-
Is this a closed list?
For now, yes, although there is nothing to prevent the Oireachtas from expanding it.
Interestingly, in 2021 draft legislation was introduced to outlaw discrimination on the basis of a candidate’s accent. The Bill is currently before the Dáil for debate.
What does the prohibition on discrimination mean in practical terms?
An employer is prohibited from declining to hire a candidate by virtue of the fact that they come within one, or more, of the discriminatory grounds.
To take a simple example, an employer cannot favour women over men, young over old or decline to hire someone purely because of membership of any of the groups listed above.
A candidate who believes they have been discriminated against has the right to initiate a claim.
Does this happen?
Yes – every year cases are taken in the Workplace Relations Commission alleging discrimination in hiring and many of those cases succeed.
Does this apply to every employer?
Again, largely. There are limited exceptions for religious, educational or medical institutions operated by religious orders, for example, but these are very much the exception to the general rule. From time to time there have been calls to eliminate these exceptions – but they are still legal at the time of writing.
Are there implications for how employers conduct interviews?
Most definitely. Employers need to be extremely careful about the questions they ask.
In 2017, by way of example, a female employee successfully brought a discrimination claim against a Government Department in circumstances where a Junior Minister asked her a number of questions in the course of an interview (including whether she was married, if she had children and how old they were).
Any questions relating to an employee’s membership of any of the nine protected groups may well give rise to problems in future. All an employee has to do is demonstrate a prima facie case for discrimination (which can be grounded in questions asked at interviews) and then the onus shifts to the employer to prove that they did not discriminate.
Should I retain interview notes?
This is always a good idea. In the event of a discrimination claim, the WRC Adjudicator may ask to see notes kept by interviewers or interview panels.
Employers should ensure that there is an objective basis for the decision to hire a particular candidate – and any inconsistencies in interview notes may give rise to a finding that there was discrimination. The same applies to scoring matrices and any other notes or documents relating to the interview process.
Is there an obligation to have a panel as opposed to a single interviewer?
No. Certain public bodies and related employers are obliged to appoint panels but most employers have discretion in how they interview.
In addition, there is no obligation to have second interviews conducted by different people (except in the case of certain mandatory public service rules) but this is often a good practical way to select a candidate.
Is there any difficulty “weeding out” CVs and only granting interviews to certain candidates?
As long as this is not done for discriminatory reasons, there is no problem.
Can I ask candidates to complete evaluations or tests as part of the interview process?
There is no prohibition on doing this and the use of tests is common in certain sectors. Again, as long as the testing is not implemented in a discriminatory manner an employer has a fairly free hand.
Can I require employees to submit a photograph with their CV?
There is no prohibition on this per se, although an employer should ask themselves whether this requirement is strictly necessary. Asking employees to state their date of birth could give rise to problems if an employee subsequently asserts that they were discriminated against.
Similarly, a photograph will often allow an employer to gauge an employee’s age. By requiring photographs, that employer is effectively putting themselves on notice of the age of applicants – and this could potentially open the door to an unsuccessful candidate arguing that they were discriminated against on the basis of age. Generally speaking, a photograph should not be necessary accompanying a CV.
Can I conduct background checks?
Employers sometimes believe that they have a free hand to review information that is in the public domain and do not need to appraise candidates of the fact that they are doing so. Linkedin, for example, is frequently a useful website when tracking the work history and professional interests of a candidate.
What is not generally known, however, is that even checking public domain material constitutes processing for the purpose of Data Protection rules. For example, if a HR manager uses their work device to look at a candidate’s social media, the device will have a record of this browsing activity. In other words, the HR manager is not just looking at a screen/not actively making a record – the record of the browsing is usually automatically captured by the device.
This means that where background checks are being conducted, records are generated of these checks and personal data is recorded about a candidate as a consequence of these checks, then an employer can only do this in circumstances where (a) they put the employee on notice (e.g. by an appropriately-tailored job Candidate Privacy Notice), and (b) they observe a fair process.
Best practice is for an employer to include a Candidate Privacy Notice in the advertisement (or job specification). This Notice is designed to achieve transparency – it should make it clear that as part of the assessment process, the employer will review publicly-available information in relation to the candidate (and, if intended by the employer, will review websites such as Linkedin).
Separately, an employer should obviously be judicious in factoring in a candidate’s social media presence when deciding to hire, or not. Depending on the platform, an employee may – obviously – present a different side of themselves to the world. It isn’t an employment law point, as such, but it is a practical one that employers should bear in mind. Many people will have a very different presence on Linkedin to Facebook – one is regarded as a vehicle for professional/career presence, and the other is less so. Making assumptions based on one presence alone might deprive you of the best talent pool.
Can I carry out criminal background checks?
With the exception of roles that require Garda vetting (involving work with children or vulnerable adults), there is no mechanism in Irish law that allows for criminal background checking. There is nothing to prevent an employer from asking a candidate to warrant that they have no criminal history.
Can I take up references?
As long as the employee consents, there is nothing to prevent an employer from reaching out to referees.
Many employers nowadays will only provide a factual reference – a statement of the commencement and termination date and a brief description of the role that the employee was hired to do.
In addition, unless the employer has a policy of providing references (or has agreed to do so in a particular case), there is no obligation to provide a reference at all – even a factual one.
As an aside, past employers should never provide laudatory references to individuals who do not deserve them.
Do I need to be careful in advertisements?
Equality law is relevant here also. An advertisement cannot discriminate against any of the nine protected categories.
You cannot, for example, advertise for employees falling within a particular age group. You cannot stipulate that only employees of a particular ethnic background should apply, and so on.
Can I stipulate professional qualifications?
Yes, there is no prohibition on doing this – an advertisement for an accounting firm, for example, can stipulate that only employees with a particular professional qualification will be eligible.
Do I need to be concerned with work permits or visas?
Yes. Nationals of countries within the European Economic Area are free to live and work in Ireland. However nationals of other nations will generally require a permit (and in some cases a visa). It is the responsibility of the employer to ensure that all staff hold the required permission from the State. There is nothing to prevent an employer from confirming this with candidates and asking for proof of their permission to live and work in Ireland.
Can I ask a female employee if they are pregnant?
This would be extremely unwise. A pregnant candidate is under no obligation to notify a prospective employer of their condition (except, possibly, in very narrow circumstances – where there might be an immediate health and safety risk to the candidate or their pregnancy if they accepted the job, and such cases will be few and far between).
Asking a female candidate about pregnancy is high-risk – if the employee is not hired, they may well be able to assert that discrimination occurred.
What should I do if an employee volunteers personal information in relation to any of the protected grounds during an interview?
If an employee volunteers personal information (such as their marital status or sexuality or disability etc) the interviewer should make it clear immediately that such considerations are not relevant and the employer is only interested in objectively selecting the best candidate for the job.
It would also be prudent to make an immediate note that the candidate unilaterally provided this information and the employer did not ask them about it.
The interviewer (or interview panel) should be scrupulously careful when deciding who to hire in the circumstances – and the interview notes and records should reflect objectivity.
Can I have employees medically examined?
Again, there is no explicit prohibition on doing this – but an employer should really only consider medical examination if there is a real need to assess the employee’s condition for employment. An indiscriminate practice of medical examinations may inadvertently put the employer on notice of a disability, for example. If this happens, the employer may find it more difficult to defend a discrimination claim.
In addition, if employees are being medically examined, it is essential that the usual Data Protection rules are observed and that a specific approach is taken on a case-by-case basis – applying a blanket approach to medical examinations could fall foul of Data Protection rules.
Should any offer I make be “subject to contract”?
Yes – definitely. While the salary and related high-level terms and conditions of employment will inevitably be discussed prior to an offer of employment being made, the employment contract will contain many additional clauses, some of which are designed exclusively to protect the employer. If the candidate declines to accept some terms/conditions (and the employer is not prepared to negotiate them), the employer needs to be free to move on to another candidate. That is why an offer of employment should always be made “subject to contract”.