Suspected discrimination in connection with crisis management recruitment (TAS 282/2021, issued on 31 August 2021)
Person A requested the Ombudsman for Equality for a comment on whether she had been discriminated against in violation of the Act on Equality between Women and Men (1986/609), when she was not selected for crisis management service, regardless of her training as a police officer and basic level training as a paramedic and a bodyguard. According to A, the level of training and background of men did not appear to bear any significance, despite the fact that the job posting specifically states that person best suited for the position will be selected.
Assessment of the case
The Ombudsman for Equality requested Pori Brigade to provide clarification on the matter. In its clarification, Pori Brigade stated that the Brigade aims to place both women and men in the Army’s military crisis management service, taking equality into consideration, without gender-based discrimination.
According to the clarification, A’s civilian and military training and experience in military crisis management service is so extensive and diverse that men with poorer merits may have been selected for crisis management operations in the last year.
The primary criterion for selection is meeting the qualification requirements. In situations in which the merits of two applicants who meet the qualification requirements are on the same level, the decision is made on the basis of other selection criteria. In such case, applicants who have not previously been selected for crisis management service have priority. For applicants who have previously served in crisis management operations, recovery time in the home country after the previous assignment is assessed. The choice between applicants whose merits are on the same level is not made based on gender, and a comparison of merits between men and women is not prepared on the applicants.
Taking into consideration the provisions laid down in the Act on Military Crisis Management, the Ombudsman for Equality finds that the provisions of the Equality Act on recruitment can be applied as specified below when selecting a person for crisis management service.
Pori Brigade stated in its clarification that the choice between applicants whose merits are on the same level is not made based on gender, and a comparison of merits between men and women is not prepared on the applicants.
The Ombudsman for Equality notes that the Equality Act requires the employer to carry out a comparison of merits when applicants include both genders, but the Equality Act does not require any specific formalities to be followed in recruitment. The purpose of the Equality Act is not to change generally accepted or common methods and practices related to comparison of merits as long as they do not discriminate against anyone on the basis of gender.
The Ombudsman for Equality recommends that comparison of merits be made in writing. Making the comparison of merits in writing ensures that all merits of applicants of different genders are taken into consideration when selecting candidates for interviews and when making the final decision. Furthermore, it is easier and more reliable to compare merits using a written summary than based on application documents alone. A comparison of merits made in writing also makes it easier to verify the selection process retrospectively, thus promoting transparency. However, the Equality Act does not specifically require that the comparison of merits is made in writing.
The purpose of the comparison is to take note of the applicants’ knowledge, experience, abilities, etc. which are objectively meaningful for the position in question. Rational principles that have been accepted in the industry and can be explained to an outsider should be used for the comparison. Information can be obtained from the documents presented by the applicants. The employer’s subjective view on whether one candidate’s training is better than the training of another may lead to gendered discrimination pursuant to section 8(1)(1) of the Equality Act, unless the training can objectively be considered to have merit. The nature of the work duties and industry practices determine what is taken into consideration when carrying out the comparison. The final comparison of merits should be an overall assessment that takes into consideration the results of different areas.
In this case, the employer stated that it is probable that applicants whose merits were not as good as A’s were selected for crisis management service. However, A or Pori Brigade have not specified a counterpart who was selected regardless of A having better merits. If such a counterpart could be identified, a presumption of discrimination would arise. In order to disprove a presumption of discrimination, the employer must demonstrate that their actions were due to another acceptable reason as required by the Equality Act.
In this case, Pori Brigade clarified that the primary criterion for selection was meeting the qualification requirements. In situations in which the merits of two applicants who meet the qualification requirements are on the same level, the decision is made on the basis of other selection criteria. In such case, applicants who have not previously been selected for crisis management service have priority.
The clarification also states that for applicants who have previously served in crisis management operations, recovery time in the home country after the previous assignment is assessed. According to the clarification, A had served on three different crisis management assignments and returned home from the previous assignment in May 2020. With regard to psychosocial support and the soldier’s functional capacity, it would be advisable for the person to take a sufficiently long time for recovering from crisis management service in the home country before going on a new crisis management assignment. As a general principle, a person should recover in their home country for at least as long as they served in a crisis area. However, for those who have served in crisis management on more than one occasion, personnel management aims for approximately two years of recovery between assignments.
Pori Brigade stated that an average of 1,557 people were on call in 2020 and approximately a third of them were selected for military crisis management operations. This means that some applicants never get to serve in crisis management.
Taking into consideration the clarification provided by Pori Brigade, the Ombudsman for Equality found in its statement that the nature of selection for crisis management operations does not fully correspond to ordinary recruitment. The aim is to also provide crisis management experience to as many candidates as possible, for which reason first-time applicants have priority. Furthermore, crisis management service is considered to be so strenuous that a sufficient recovery period is required before being appointed to a new assignment.
Therefore, the Ombudsman for Equality found that Pori Brigade had presented acceptable reasons for not selecting A for crisis management service in 2020. Thus, A was not discriminated against in selecting people for crisis management operations.
20.09.2021
