Suspected case of discrimination in hiring procedures at a strawberry farm (TAS 250/2013, issued on 25 November 2013)

The Ombudsman for Equality itself undertook to investigate hiring practices at a certain strawberry farm. A boy who had applied to the farm for a summer job had received a text message in reply stating that they mainly hired girls, as experience showed that they picked the fruit more quickly.

In a statement it gave to the Ombudsman, the strawberry farm said that it did not treat boys and girls differently as jobseekers and listed the gender-neutral criteria on which choices are based. Such criteria include age, the ability to get to work at the time stated by the employer, enthusiasm, the willingness to commit to an employment relationship lasting around three weeks and the general impression the young person makes at an interview. However, the text message from the farm stated that they mainly employed girls and this was so because girls picked the fruit faster than boys. It was evident from the statement to the Ombudsman that, in practice, girls were being hired to do the work. According to the statement from the strawberry farm, over the years the girls had proven to be more adept and reliable than the boys. As for the boys, they said they had been more interested in harassing the girls picking strawberries and that they got far less work done than the girls.

The Office of the Ombudsman for Equality said in its statement that the Equality Act did not restrict an employer's right to select someone he regarded as being best for a job The Act requires that the hiring procedure is based on a proper, impartial assessment of the applicants and an employer cannot chose anyone on the grounds of gender for no good reason.

It is acceptable during the recruitment process to give attention to the applicants' personal qualities. However, assessments made about their personal qualities cannot be based on generalisations about a certain gender. Such a generalisation would be, for example, that persons of one gender are thought to do a job well. If someone's unfavourable treatment in a job application is based on the fact that he or she represents a gender which those who make the selection decision associate with undesirable qualities, the procedure may be seen as being due to gender, and that is direct discrimination prohibited in the Equality Act.

The statement received by the Ombudsman suggested that the strawberry farm seemed, in its choice of strawberry pickers, to be prone to the sort of generalisations referred to above, regarding girls and boys and their abilities and qualities. The Ombudsman urged the farm to evaluate its hiring practices and ensure in future that girls and boys are treated as individuals when they apply for work, and not as representatives of a gender.