Discrimination in the recruitment and selection of employees
The Equality Act does not restrict an employer’s right to choose the candidate it considers the best for a particular job. The Act aims to prevent situations in which a person is appointed unjustly on the basis of gender when another candidate would have been more qualified.
This also applies to situations where employees are selected from within the workplace for training programmes or new roles. Applicants must not be discriminated against on the grounds of pregnancy, childbirth, parenthood or family responsibilities.
Furthermore, the employer must not act in a way that results in a person being in an unfavourable position in these situations due to gender identity or gender expression.
A finding of discrimination does not require intentionality or negligence by the employer.
When there are both male and female applicants, the employer is to carry out a comparison of merits. The employer's own previously set selection criteria are of central importance in the comparison of merits. Attention is usually given to applicants’ qualifications, previous work experience, and any qualities, knowledge, and skills that could prove useful in the job and that can therefore be considered as additional merits.
The employer may choose to specifically hire a man or a woman for the task without being guilty of discrimination if this is based on weighty and acceptable grounds related to the nature of the job or the task. For example, a theatre may want to hire a male actor, as this is required by the role, or the working relationship may be so personal, for example when caring for an elderly person in their home, that they specifically want to hire a man or a woman.
On the whole, an acceptable reason is required if, according to the general criteria set, the most qualified applicant is not chosen. An acceptable reason may for example be a difference in personal suitability between the candidate who was selected and the candidate who was not. It is up to the employer to prove that such a reason exists.
The discriminated party's right to demand compensation
A person has the right to demand compensation from the employer in court if they have been discriminated against during recruitment Compensation can be demanded whether or not a complaint has already been made on the decision or conduct that is suspected of being discriminatory.
Elina applies for an interesting role that is very similar to the job she has previously done. Despite this, she is not invited for an interview. Elina is left to wonder why she hasn't even got an interview and decides to ask the employer who the successful candidate was and why they got the job. The employer tells Elina that a man was given the job. The information the employer provides also reveals that the successful candidate did not list a required qualification in his application and had no experience whatsoever of the kinds of tasks required for the advertised position.
Elina decides to contact the Equality Ombudsman to find out if she has been the victim of gender-based discrimination. The Equality Ombudsman investigates the matter and concludes that there was a presumption of discrimination insofar as Elina had the qualification required by the employer for the vacant position in question in addition to more experience of similar roles than the successful candidate. The employer justified the selection of the male candidate on the basis of him having been very energetic and motivated at interview. This did not, however, constitute acceptable grounds for rejecting Elina's application, as she had not been invited to interview and, consequently, the employer was not able to assess her suitability for the role.
The information the employer provides also reveals that the successful candidate did not list a required qualification in his application and had no experience whatsoever of the kinds of tasks required for the advertised position. The Equality Ombudsman investigates the matter and concludes that there was a presumption of discrimination insofar as Elina had the qualification required by the employer for the vacant position in question in addition to more experience of similar roles than the successful candidate.