Tribunal Report: The selection criteria that discriminate accidentally

A recent case in Belfast shows the importance of careful consideration of selection processes, says Victoria Willson

Victoria Willson
Victoria Willson

The industrial tribunal in Belfast recently decided in Crilly v Ballymagroarty Hazelbank Community Partnership that the charity's shortlising criteria had led to indirect discrimination against Nuala Crilly on the grounds of sex. The case illustrates the care required when devising selection processes.

The story

BHCP is a charitable voluntary organisation that promotes regeneration in Derry, Northern Ireland. It advertised vacancies for two posts of neighbourhood regeneration officers and stipulated that candidates should have "two years' relevant experience in a community development capacity (paid) gained within the last five years".

Crilly, who had a six-year break from paid work because of her child-caring responsibilities, applied for the post. Instead of paid employment in the last five years, she relied on unpaid relevant voluntary work for her application. She was not shortlisted for the position because she did not have relevant paid experience in the past five years. She complained to the tribunal that the requirement of relevant paid experience within the past five years discriminated indirectly against women.

The legal decisions

The tribunal upheld Crilly's complaint. It found that women were placed at a disadvantage compared with men by the requirement of relevant paid experience within the past five years. It held that it was settled law that women were more likely to have primary caring responsibilities for family members, which was supported by statistics from the quarterly Northern Ireland Labour Force Survey.

The tribunal found that Crilly suffered an actual disadvantage by being eliminated at the shortlisting stage because she could not meet this requirement. It also found that Crilly had established that the requirement that candidates have the specified experience was potentially indirectly discriminatory. It fell to BHCP to justify this requirement.

To do so, BHCP had to show that the requirement was a proportionate means of achieving a legitimate aim. BHCP argued that the requirement was justified because it was a proportionate way of achieving the legitimate aim of appointing a person who could "hit the ground running" and who could perform the job immediately with minimal supervision.

The tribunal was not satisfied that the requirement was "appropriate and necessary" to achieve these aims because BHCP gave a two-month induction period to the successful candidates, and it accepted Crilly's argument that this was sufficient to bring her up to date with any new matters. The tribunal also found the requirement unjustified because it excluded people, like Crilly, who could demonstrate extensive unpaid relevant experience during the period. Crilly was awarded £5,000 for injury to feelings and £9,667 loss of earnings and interest.

Lessons for charities

This case shows the importance of careful consideration of selection criteria, not just in job advertisements, but also in the recruitment processes, promotion and in any situation where objective criteria are used to make personnel decisions that could disadvantage particular groups.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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