Discrimination in Recruitment - Unlawful political discrimination following failure to appoint highest scoring candidate

12 June 2018

The importance of a fair and merit based recruitment process was highlighted in a decision recently issued by the Fair Employment Tribunal in Northern Ireland (CRN 65/17FET). Awarding compensation of £5,500 to former Sinn Féin MLA Phil Flanagan, the Tribunal found that Mr Flanagan had been unlawfully discriminated against on grounds of his political opinion by Citizens Advice Armagh in relation to their failure to appoint him to the post of Manager, despite being the highest scoring candidate in the recruitment process.

Discrimination in Recruitment - Unlawful political discrimination following failure to appoint highest scoring candidate

Mr Flanagan was shortlisted for interview alongside another candidate. The other candidate, was an employee of Citizens Advice Armagh who had been fulfilling the role of Temporary Manager for a period of six months. It transpired through the course of the Tribunal proceedings that the other candidate did not meet the first shortlisting criterion in that she had a degree but not a degree in management or its equivalent, nor did she have the alternative five years relevant experience. Consequently she should not have been shortlisted for interview. The interview process comprised a presentation and a formal interview.  Each stage was marked separately and each of the 3 panellists marked individually with the marks being disclosed and collated at the end of the process. 

Following interview the other candidate was appointed to the role, notwithstanding that Mr Flanagan had received the highest aggregate markings of the two candidates interviewed. It emerged that Mr Flanagan had not been appointed following a discussion after the conclusion of the interview process, that discussion included a referral to the Regional Office and apparent involvement of an individual who was a former SDLP MLA and in the Tribunal’s view, a political rival of Mr Flanagan.

The Tribunal was fiercely critical of “the shifting and untruthful explanations” given by the Respondent as to the reason why Mr Flanagan not appointed to the post from the initial letter of rejection, the feedback provided when sought and in the response submitted to the Tribunal. Despite scoring the highest marks at interview, explanations for rejection included “it was felt that your skills, knowledge and experience were not as strong as the other candidate who has been offered the position”, “you did not provide sufficient evidence of how you would meet customer needs or complete day to day work based on current priorities and demands, including understanding of service delivery at a regional or wider level” and that the Claimant was not appointed “due to a previous employment issue”. Further explanations for the decision not to appoint Mr Flanagan were advanced during the course of the hearing including a failure to properly complete part of the application form, that he would have been less flexible and sympathetic than the successful candidate and that he would have implemented change for change’s sake. None were accepted by the Tribunal. The  Tribunal also rejected explanations from one member of the interview panel in relation to her scoring of the Claimant’s answers at interview as “lacking genuine feeling”, “quoting answers as opposed to feeling them”, “as if you were reading them out of a book”. In its Decision, the Tribunal noted that “this had not been a poetry or drama competition, or an analysis of whether the candidates had emoted sufficiently.  This had been a competence based interview designed to produce an objective assessment of the candidates”. 

The tribunal recorded its concern that an interview panel member was prepared to depart from the objective marking reached by the panel and to allow subjective “feelings” about how the claimant would “fit in” to determine the result of the process.

The Tribunal further noted that geographical location or knowledge was not a competence or a job requirement, an interview panel member having stated to the Tribunal that the successful candidate knew the Armagh area, had lived there and knew the Armagh people and the Armagh office.

The organisation failed to reply to the Statutory Questionnaire served by the Claimant under the relevant legislation, a process through which an unsuccessful candidate is entitled to ask pertinent questions and seek further information in relation to a recruitment process, and the Tribunal noted that it was entitled to draw an adverse inference from that failure.

The Tribunal remarked Mr Flanagan had been relatively well known as a Sinn Féin MLA and had been subject to frequent media coverage and it was highly unlikely that anyone involved in the recruitment process would have been genuinely unaware of the his party affiliation and therefore his political opinion. 

Upon consideration of the evidence, the Tribunal rejected as “simply not credible” the submission made on behalf of the Respondent that it had made a mess of the interview process and that it had all been an innocent and well-meaning exercise which had gone horribly wrong. The Tribunal concluded that the Respondent had not discharged the shifting burden of proof and had unlawfully discriminated against the claimant on the grounds of his political opinion. The Tribunal recommended that the organisation review their appointment procedures, if necessary with the assistance of the Equality Commission, within six months of the date of this decision.

Louise McAloon is a Partner in Worthingtons Commercial Solicitors specialising in employment law. She can be contacted on 028 9043 4015 or louise@worthingtonslaw.co.uk.










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