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Public appointment of the city clerk by unanimous decision of the city council (TAS 188/2015, issued on 17 September 2015)

The Ombudsman for Equality was asked to determine whether a woman, who had long served in a supervisory capacity in the municipal sector, was discriminated against when the city council appointed a recent male university graduate to the office of city clerk by unanimous decision. The difference in work experience between the two applicants – over 20 years – is considerable.

In the call for applications, the stated qualification requirements for the office were a higher education degree suitable to the position in question and sufficient familiarity with municipal administration. According to the call for applications, the successful performance of duties as city clerk required a strong knowledge of personnel management, excellent co-operation and interaction skills, management skills and a developmental approach to work. According to a report issued by the city, a special emphasis was given to the expertise needed in central municipal administration. It was required that the applicant's educational background and work experience be in the same field as the duties involved in serving as the city clerk. Another appointment criterion specified was a successful interview.

No comparison of qualifications between the applicants was made. All applicant applications and curricula vitae were submitted to the interviewers and decision-makers. The city board did not provide the name of the candidate to the city council. A council parliamentary group submitted its candidate proposal for the office and a deputy at the city council meeting. After the parliamentary group addressed the meeting, all other parliamentary groups seconded the proposal. Because the decision was unanimous, no municipal election was held.

The Ombudsman for Equality stated that the Equality Act requires a comparison of qualifications whenever men and women are applying for the same position. The comparison of qualifications should not be considered a formal summary defining the appointment, but rather as an objective assessment of who is best qualified to hold the office. Even though a more qualified applicant might be bypassed for an appointment if a lesser qualified applicant possesses personal attributes that favour his or her appointment, this still does not diminish the importance of comparing the qualifications of both applicants. On the basis of a proper comparison of qualifications, both applicants are given an opportunity to judge the propriety and legality of the appointment process.

In order for an employer to invoke the personal attributes of a lesser qualified applicant as the reason for making its appointment, it would have to carefully and objectively weigh the skills and attributes of both applicants. In this case, the city did not provide the Ombudsman for Equality with a more detailed explanation of how it made this comparison. For example, no written interview records were made.

The Ombudsman for Equality stresses that the prohibition of discrimination under the Equality Act is a restriction on municipal self-government, which can impose more stringent requirements on municipal functions than the general principles of civil service or administrative law would. In a comparison of qualification compliant with the Equality Act, for example, political activity can be taken into consideration only to the extent that it enhances the applicant's qualifications to serve in the office.

The Ombudsman for Equality stated that, based on the report concerning the matter at hand, it would seem that, in terms holding the office in question, the woman requesting the statement possessed considerably more work and managerial experience than the man actually appointed to the office. The person appointed to the office, who had still not fully completed his post-graduate degree at the time of the appointment, could not have accumulated an equivalent amount of experience in, for example, supervisory tasks. This was not even possible in terms of the amount of time given. Seen as a whole, it would seem that the person requesting the statement was more qualified than the person appointed to the office in question. In this case, the burden of proof showing that the man appointed was better suited to the office of city clerk rests with the city.