In an age discrimination case before the Workplace Relations Commission (WRC), A Clerical Officer v A State Body (ADJ-6574), the Adjudication Officer recommended that State bodies should review the practice of requiring job candidates to supply photographs with application forms.

Background

This case concerned an employee who applied for an internal promotion in a company where he had been working for ten years. He was unsuccessful in his application. He alleged that his employer, a public service body, discriminated against him and did not promote him due to his young age in comparison with other candidates and brought a claim to the WRC under the Employment Equality Acts 1998 - 2015.

The employee attended an interview as part of the process and alleged that the questions included a heavy reliance on questions concerning his people-management skills competency. He submitted that he was then asked whether his colleagues were older than him and how he would manage people who were older and more experienced than him. The interview notes refer to him as the youngest and not the most experienced.

The employer submitted that the same questions were asked of all candidates and that the topic of his age was only introduced once the employee introduced this topic himself by informing the interview panel that he was "the youngest candidate". Further questions in relation to his age were for the purpose of probing and asking the employee to elaborate on his points. The employer submitted that the interview process was at all times transparent and impartial according to the Code of Practice for Appointments to positions in the Civil Service and Public Service issued by the Commission for Public Service Appointments. As far as the interview notes were concerned, the employer submitted that it was the employee who said "he was the youngest and not the most experienced".

The employee was also required to provide a photograph as part of the process. The employer submitted that the requirement to provide a photograph was to prevent fraud and in order to ensure that no impersonation occurred. The employer submitted that the requirement to provide a photograph is proportionate and objectively justified and not prejudicial to any candidate.

Decision

The Adjudication Officer considered whether a prima facie case of discrimination had been established. For this the Adjudication Officer referred to the three step test:

  1. The complainant must establish that he/she is covered by the relevant discriminatory ground;
  2. He/she must establish that the alleged specific treatment occurred; and
  3. He/she must show that the treatment was less favourable than would otherwise be afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

The Adjudication Officer stated that, although it was clear that the complainant is comparatively younger than the other candidates for this position, it was not apparent that any specific discriminatory treatment occurred. The interview panel had set questions and it was the complainant himself who introduced the topic of age. The same scoring system was used for all candidates and the Adjudication Officer believed that the board members were trained and aware of the obligations surrounding quality, transparency and fairness.

Ultimately, the Adjudication Officer held that the prima facie case had not been established and the complaint was not upheld.

Nevertheless, the Adjudication Officer did go on to consider the issue concerning the requirement of the photograph. He stated that "surely in this day and age there are ways of preventing personation which are less open to allegations of prejudice. The 'requirement' to supply photographs with application forms for job applications has long ceased elsewhere."

Comment

This case serves as a reminder to employers (both in the public and private sector) that alternative methods to requiring photographs in job applications should be used to avoid any allegation of discrimination on any of the nine grounds of discrimination pursuant to the Employment Equality Acts.

This case is also a reminder to employers to ensure that fair, transparent and non-discriminatory methods are used when interviewing candidates and that those employees conducting the interview have been appropriately trained.

Employers are also reminded that job applicants (non-employees) can make a claim under the Employment Equality Acts 1998 - 2015 and can be awarded compensation of up to €13,000 if they successfully claim they were discriminated against on any of the nine grounds.