Guide to Employers on Equal Opportunities Aspects of Recruitment and Selection

Guidelines for Health Service Employers on

Equal Opportunities Aspects of Recruitment and Selection

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.  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 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

3.1.1  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.

3.1.2  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:

Key Points:

Ø  Job title/Grade

Ø  Department

Ø  Location(s)

Ø  Reporting Relationships

Ø  Overall purpose of the job

Ø  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”.

Ø  Hours of work (including such additional hours as are necessary)

Ø  Salary

Ø  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.

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.

3.1.3  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 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 action[1]. 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.

4  The Selection Process

Application Forms / Shortlist applicants

Interview

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

4.1.1  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.

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.

4.1.2  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.