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Thursday, August 24, 2017

Discrimination on grounds of age during recruitment process



CollierBroderick The recent Tennis Ireland case before the WRC, reported in IRN, resulted in the WRC Adjudication Officer deciding that  Tennis Ireland had discriminated against the former director of development at the International Tennis Federation, on the ground of age, when it selected a less qualified candidate for the post of chief executive.

The claimant was significantly better qualified


The  Adjudication Officer (AO) said that both candidates for the post had qualifications and experience which enabled them to meet the requirements of Tennis Ireland. The AO said that the claimant “was significantly better qualified” and had all the professional experience required in the sport.

The claimant had considerable experience in sports management, having been in a senior position with the International Tennis Federation for 24 years.  It was contended that his age, 58, was the reason for his not securing the appointment.  The successful comparator was 44 years of age when he applied.

The claimant said his interview notes had been marked by a board member with the word “mature”, which he said was a direct reference to his age.

Tennis Ireland acknowledged the complainant’s extensive experience but strenuously denied that the word “mature” on interview notes intended any negative connotation with the claimant’s age.

Selection process


In the first round of interviews, the successful candidate came in first place and the complainant in second place.

The final decision was made by a seven-person subcommittee composed of the respondent, “but without the person from Sports Ireland who had previously sat on the interview board”.

The respondent’s chairperson said that it was felt that the complainant’s experience in his international role “was too high level for what the respondent needed” and that the successful candidate had garnered 5 of the 7 available votes.

Successful candidate significantly less qualified and younger


The AO said that the differences between the complainant and the successful candidate “really are significant”.  The successful candidate was “significantly less qualified” and together with an age difference of about 14 years, this established facts from which age discrimination may be inferred.

He said that a voting process “can be influenced by conscious or sub conscious discriminatory motives as much as any other human activity.”

He said that the reasons given by the chairperson for the appointment of the successful candidate, that he had better “grassroots experience” and “on the ground” experience in terms of sponsorship and that he knew, for example, where to source cheap Astroturf, “make less sense when one considers that they relate to an entirely different sport…..which bears little resemblance to the sport which the respondent is responsible for”.  Furthermore the complainant had worked his way up as an administrator and had experience at a “mundane level” of administering his sport, as much as at the top.

While any organisation is entitled to emphasise the immediate challenges which the new hire needs to address the AO said “there is simply nothing in the complainant’s cv which would explain why the … respondent felt it could not trust the complainant to meet those challenges”.

Case Law


The AO drew on the case of Kathleen Moore Walsh v WIT. The Court held that in cases which involve the filling of posts, it is not the Court’s function to substitute its views on the merits of candidates for those of the decision makers.  What it must do is ensure the selection process is not tainted by unlawful discrimination.

He also drew on O’Halloran v Galway City Partnership, in which the Court pointed out that the qualifications criteria are a matter for the employer “in every case”, as long as these are not indirectly discriminatory.  It is only if the chosen criteria are applied inconsistently as between candidates, or an unsuccessful candidate is clearly better qualified, that an inference of discrimination could arise.

The AO’s Decision


The AO concluded that it was clear the chosen criteria were applied inconsistently. He said that both candidates had qualifications and experience which enabled them to meet the respondent’s stated priorities, but the complainant was significantly better qualified and had all the professional experience needed.

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