Indirect Discrimination - Is this a clear example?

antoswords

Hi Folks,

My employer has recently advertised a competition for a role in the organisation. This role is a Finance/Administration position. Looking through the eligibility criteria it states that experience in a particular area is required. Now this experience that they are looking for has no impact or relevance to the advertised job and is completely unnecessary as it will not be a skill that will be used in any way, shape or form.

Having this as a criteria excludes me from applying (and many others) although we meet all the essential criteria in the job spec and i could argue that we are more experienced and suited to this type of job than others who are eligible simply by having the experience stated in the eligibility criteria.

I feel that this is an example of Indirect discrimination effecting a group of workers who it seems are treated less favorably as a result of that one eligibility requirement that they will find impossible to fulfill. The advertisement contains criteria that prevents some workers with the requisite knowledge, skills, experience and attributes from applying for these positions.


Appreciate any thoughts on this

Thanks

The criteria in job advancement is not designed to include everyone who can do the job, it is usually the minimum standard required to be considered for the position. People with no qualifications or experience may feel capable of doing the job, but the employer may require both, is that discrimination? Hard to see on which one of the 9 grounds it would fall under if criteria is applied equally to all applicants.

listermint

Its not descrimination no,

you phrase it as though experience would be desired though.

So whats stopping you applying for it.


Again, this isnt descrimination so put that stuff to rest.

Which of the nine criteria do you feel it is falling foul of?

Asking for say a qualification in accounting would not be unreasonable when recruiting for a financial administration role.

Gender: this means man, woman or transsexual
Civil status: includes single, married, separated, divorced, widowed people, civil partners and former civil partners
Family status: this refers to the parent of a person under 18 years or the resident primary carer or parent of a person with a disability
Sexual orientation: includes gay, lesbian, bisexual and heterosexual
Religion: means religious belief, background, outlook or none
Age: this does not apply to a person aged under 16
Disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
Race: includes race, skin colour, nationality or ethnic origin
Membership of the Traveller community.

https://www.citizensinformation.ie/en/employment/equality_in_work/equality_in_the_workplace.html

antoswords

Dav010 wrote: »

The criteria in job advancement is not designed to include everyone who can do the job, it is usually the minimum standard required to be considered for the position. People with no qualifications or experience may feel capable of doing the job, but the employer may require both, is that discrimination? Hard to see on which one of the 9 grounds it would fall under if criteria is applied equally to all applicants.

Hi thanks for replying,

What I'm saying is how can a organisation stipulate particular experience as a requirement for a role where that experience is not necessary, and can not be proven to be necessary ?

I'm not taking about discrimination under the the 9 grounds, as i think that would come under direct discrimination, I'm talking about indirect discrimination :

Discrimination under the Employment Equality Acts 1998 – 2015

Direct discrimination is when a worker is treated less well than another worker in the same situation or circumstances under any of the nine grounds covered in the Acts.

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favorably as a result of requirements that they might find hard to satisfy.

Thanks again for your input

antoswords

Deleted User wrote: »

Which of the nine criteria do you feel it is falling foul of?

Asking for say a qualification in accounting would not be unreasonable when recruiting for a financial administration role.

Gender: this means man, woman or transsexual
Civil status: includes single, married, separated, divorced, widowed people, civil partners and former civil partners
Family status: this refers to the parent of a person under 18 years or the resident primary carer or parent of a person with a disability
Sexual orientation: includes gay, lesbian, bisexual and heterosexual
Religion: means religious belief, background, outlook or none
Age: this does not apply to a person aged under 16
Disability: includes people with physical, intellectual, learning, cognitive or emotional disabilities and a range of medical conditions
Race: includes race, skin colour, nationality or ethnic origin
Membership of the Traveller community.

https://www.citizensinformation.ie/en/employment/equality_in_work/equality_in_the_workplace.html

Thanks for the response !

Not foul of the criteria for direct discrimination. See below

Discrimination under the Employment Equality Acts 1998 – 2015

Direct discrimination is when a worker is treated less well than another worker in the same situation or circumstances under any of the nine grounds covered in the Acts.

Direct discrimination can also be, for example, an order given by a manager to a worker to discriminate against another worker.

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favourably as a result of requirements that they might find hard to satisfy.

antoswords

listermint wrote: »

Its not descrimination no,

you phrase it as though experience would be desired though.

So whats stopping you applying for it.


Again, this isnt descrimination so put that stuff to rest.

The advertisement states that one of the eligibility criteria is that applicants must have this particular experience, not desired, a must. My argument is that i should be eligible to apply for the role as i meet all the essential criteria and that that one eligibility criteria that they stipulate in the advertisement is not necessary for this role (it really isn't)

Would it not be classed as indirect discrimination though, going by the below?


Discrimination under the Employment Equality Acts 1998 – 2015

Direct discrimination is when a worker is treated less well than another worker in the same situation or circumstances under any of the nine grounds covered in the Acts.

Direct discrimination can also be, for example, an order given by a manager to a worker to discriminate against another worker.

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favourably as a result of requirements that they might find hard to satisfy.

Thanks for taking the time to respond

antoswords

Dav010 wrote: »

The criteria in job advancement is not designed to include everyone who can do the job, it is usually the minimum standard required to be considered for the position. People with no qualifications or experience may feel capable of doing the job, but the employer may require both, is that discrimination? Hard to see on which one of the 9 grounds it would fall under if criteria is applied equally to all applicants.

None of the 9 as that would be direct discrimination. I'm thinking indirect discrimination as set out in the Discrimination under the Employment Equality Acts 1998 – 2015


Direct discrimination is when a worker is treated less well than another worker in the same situation or circumstances under any of the nine grounds covered in the Acts.

Direct discrimination can also be, for example, an order given by a manager to a worker to discriminate against another worker.

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favourably as a result of requirements that they might find hard to satisfy.

Thanks for replying

28064212

antoswords wrote: »

Indirect discrimination happens where a worker or group of workers or job applicants are treated less favorably as a result of requirements that they might find hard to satisfy.

You're missing an implication: the group must be one of the protected groups. Classic example of indirect discrimination: a height requirement. Height is not one of the protected groups, but gender is, and women will find it more difficult to meet that requirement, hence it is indirect discrimination on the basis of gender.

See section 31 of the Employment Equality Act for further reading. In particular

(c) in practice can be complied with by a substantially smaller proportion of the members or potential members having the same relevant characteristic as C when compared with the members or potential members having the same relevant characteristic as D

Relevant characteristic, defined in section 28, covering the already mentioned grounds

loyatemu

can you be sure this requirement isn't relevant. Maybe the role is different to what you think it is? Maybe they're looking to expand the role?

lunamoon

loyatemu wrote: »

can you be sure this requirement isn't relevant. Maybe the role is different to what you think it is? Maybe they're looking to expand the role?

This was what I was coming onto to post. How do you know for certain that the role doesn't require that experience?

antoswords

28064212 wrote: »

You're missing an implication: the group must be one of the protected groups. Classic example of indirect discrimination: a height requirement. Height is not one of the protected groups, but gender is, and women will find it more difficult to meet that requirement, hence it is indirect discrimination on the basis of gender.

See section 31 of the Employment Equality Act for further reading. In particular Relevant characteristic, defined in section 28, covering the already mentioned grounds

Thanks for that, very interesting. So in your opinion, even though that one particular experience they are looking for will not ever be needed for the role advertised, but excludes a certain cohort of workers who are more than qualified in qualifications and experience, it is all above board?

Cheers

antoswords

loyatemu wrote: »

can you be sure this requirement isn't relevant. Maybe the role is different to what you think it is? Maybe they're looking to expand the role?

100% sure. its actually ridiculous that it's part of the eligibility requirements, and in no way can the organisation even justify that it is anyway necessary.

I'd love to disclose it, but it would be too obvious. It is Public Service though.

Cheers

28064212

antoswords wrote: »

Thanks for that, very interesting. So in your opinion, even though that one particular experience they are looking for will not ever be needed for the role advertised, but excludes a certain cohort of workers who are more than qualified in qualifications and experience, it is all above board?

Cheers

Didn't say it was above board, just that it is not proscribed discrimination.

antoswords

28064212 wrote: »

Didn't say it was above board, just that it is not proscribed discrimination.

I understand. I have raised my concerns with HR 9 days ago outlining my issue, and they have yet to respond, and they always respond to queries !!!

:pac::pac:

IAmTheReign

antoswords wrote: »

Thanks for that, very interesting. So in your opinion, even though that one particular experience they are looking for will not ever be needed for the role advertised, but excludes a certain cohort of workers who are more than qualified in qualifications and experience, it is all above board?

Cheers

I'm not being funny here but if you don't have the experience they're looking for you're not more than qualified. I've been involved in hiring people to work under me in the past and there's plenty of people who apply for jobs thinking they know what it involves and that they're qualified for it and their CV ends up in the bin.

Still though if you genuinely think that you're capable for the job you have two options. You could talk to HR and explain your case. For all you know it could be a typo in the job spec. Your other option is you could apply anyway, and make your case in a cover letter why you think that you're suitable.

IAmTheReign

IAmTheReign wrote: »

I'm not being funny here but if you don't have the experience they're looking for you're not more than qualified. I've been involved in hiring people to work under me in the past and there's plenty of people who apply for jobs thinking they know what it involves and that they're qualified for it and their CV ends up in the bin.

Still though if you genuinely think that you're capable for the job you have two options. You could talk to HR and explain your case. For all you know it could be a typo in the job spec. Your other option is you could apply anyway, and make your case in a cover letter why you think that you're suitable.

A public service recruitment process would probably eliminate the OP if they dont have the requirement, regardless of their suitability otherwise.

It might not seem fair OP but if it is within the law there isn't much you can do.

Are you in a union?

antoswords

IAmTheReign wrote: »

I'm not being funny here but if you don't have the experience they're looking for you're not more than qualified. I've been involved in hiring people to work under me in the past and there's plenty of people who apply for jobs thinking they know what it involves and that they're qualified for it and their CV ends up in the bin.

Still though if you genuinely think that you're capable for the job you have two options. You could talk to HR and explain your case. For all you know it could be a typo in the job spec. Your other option is you could apply anyway, and make your case in a cover letter why you think that you're suitable.

Hi

Thanks for replying. My point is that i am more than qualified, my argument is that the experience stipulated in the eligibility requirements have absolutely no relevance on the role advertised, and couldn't be more irrelevant.

HR have yet to respond to an email i sent 9 days ago on this very issue

It is hard to hard to advise without knowing what the unreasonable bit is.

If you are required to have a masters degree in marine biology to do a finance admin job in offaly county council then it is fishy.

If they require you to have a payroll qualification for a role that doesn't currently involve payroll but could conceivably include it it is less obviously fishy, but could be being managed to exclude some.

antoswords

Deleted User wrote: »

A public service recruitment process would probably eliminate the OP if they dont have the requirement, regardless of their suitability otherwise.

It might not seem fair OP but if it is within the law there isn't much you can do.

Are you in a union?

Hi,

Yes in a Union, but they also represent another cohort of workers who make up 90% of their membership who would have this particular experience they outlined, but none of the essential criteria outlined. I contacted them also with my concerns and was met with a wall of silence as expected. :rolleyes:

antoswords

Deleted User wrote: »

It is hard to hard to advise without knowing what the unreasonable bit is.

If you are required to have a masters degree in marine biology to do a finance admin job in offaly county council then it is fishy.

If they require you to have a payroll qualification for a role that doesn't currently involve payroll but could conceivably include it it is less obviously fishy, but could be being managed to exclude some.

Hi,

I understand its vague. I could PM you if you feel you could advise.

Thanks

I'm by no means an expert so I wouldn't bother PMing me.

antoswords

antoswords wrote: »

Hi

Thanks for replying. My point is that i am more than qualified, my argument is that the experience stipulated in the eligibility requirements have absolutely no relevance on the role advertised, and couldn't be more irrelevant.

HR have yet to respond to an email i sent 9 days ago on this very issue

Surely experience is always relevant to any position which requires a qualification? I am not sure how the request for experience could be considered discrimination as experience in a job/task is a confirmable affirmation that you can carry out tasks which may be required in the job, even if the tasks are not exactly what you have experience in.

People who attain a qualification, often need to work over a number of yers to gain competency.

Del2005

antoswords wrote: »

I understand. I have raised my concerns with HR 9 days ago outlining my issue, and they have yet to respond, and they always respond to queries !!!

:pac::pac:

HR works for the company not the employees.

the_syco

antoswords wrote: »

So in your opinion, even though that one particular experience they are looking for will not ever be needed for the role advertised, but excludes a certain cohort of workers who are more than qualified in qualifications and experience, it is all above board?

So in your opinion, there's one particular experience that they are looking that you say will not ever be needed for the role? Why do you assume said experience will not be used?

antoswords wrote: »

but they also represent another cohort of workers who make up 90% of their membership who would have this particular experience they outlined, but none of the essential criteria outlined.

So they are looking for someone with experience in both areas? Is it open to the public, and if so, maybe they're looking for someone outside of your company?

antoswords

Dav010 wrote: »

Surely experience is always relevant to any position which requires a qualification? I am not sure how the request for experience could be considered discrimination as experience in a job/task is a confirmable affirmation that you can carry out tasks which may be required in the job, even if the tasks are not exactly what you have experience in.

People who attain a qualification, often need to work over a number of yers to gain competency.

The experience they are seeking is not relevant to the position in any aspect. They are not seeking a qualification of any kind. I have gained the competencies required and have a qualification directly related to the position it’s just I’m ineligible due to this one (irrelevant) stipulation

antoswords

the_syco wrote: »

So in your opinion, there's one particular experience that they are looking that you say will not ever be needed for the role? Why do you assume said experience will not be used?

Yes. I’m not assuming it won’t be used, I know for a fact it won’t.


So they are looking for someone with experience in both areas? Is it open to the public, and if so, maybe they're looking for someone outside of your company?

It’s a confined competition within a public service body, so internal only.

antoswords

Del2005 wrote: »

HR works for the company not the employees.

I appreciate and understand that. I just hoped for a quicker response to my query,

Princess Calla

Any time I've seen job specs like that, it's usually a case that they already know who is getting the job and the spec was wrote around their skills and experience.

If anyone then queries why X got the job it can be proven that they met each requirement.

Mrs OBumble

antoswords wrote: »

It’s a confined competition within a public service body, so internal only.

OP, I thnk that the laws about discrimination are not the right ones to use here.

I understand that there are some other employment-related laws which effectively mean that the selection criteria need to be relevant to the job. (For example, one of my pet theories is that employers should be incentivised to hire people who live close to work, so as to minimise the environmental impact of the employment. I've been told that this would be illegal, because place of residence doesn't determine suitability for the job.

But I'm not a lawyer, I cannot tell you what laws apply. And they likely would be expensive to take an action under because they are complex.

In the bigger picture, it's likely there's some factor about the likely future of the job or organisation which makes this experience desirable. Either that, or they really do want to limit the number of people who can apply. I suspect that you might be picking a difficult battle here, which ultimately you won't win.

BTW - you can apply, there's nothing stopping that. But you would do so knowing that your application would likely be disqualified as soon as they check applicants for the stated experience.

This is taken from a legal/HR site in UK:

“Can employers specify a minimum number of years' experience in job advertisements?

A requirement to have a minimum number of years' experience or previous service is potentially indirectly age discriminatory against younger candidates, who are less likely than older workers to be able to meet the requirement.

It would therefore be for the employer to justify the need for a certain number of years' experience. Certainly after the first few years, judging competencies by reference to years of experience is not reliable. This is because a great deal of experience is gained during the first few years of employment, but this then tends to "level out". There is, for example, probably little difference in competence between someone with, say, 10 years' experience and someone with 12 years' experience.

Clearly, it is quite legitimate for an employer to wish to appoint a job applicant who is suitable to fill the particular vacancy. However, instead of specifying years of experience or service, which is time-based so potentially indirectly age discriminatory, employers should specify the type, breadth or level of experience needed for the particular job and the skills and competencies required. Employers can use the person specification to assist in the drafting of a suitable advertisement.”


Op, in your case, by advertising experience required in a particular facet of the job, though you feel it is unrelated, they appear to have covered themselves. In fact your assertion in your op that it be based on the experience in the job may in fact be an example of indirect age discrimination. Is this in the public sector?

antoswords

Princess Calla wrote: »

Any time I've seen job specs like that, it's usually a case that they already know who is getting the job and the spec was wrote around their skills and experience.

If anyone then queries why X got the job it can be proven that they met each requirement.

100%

antoswords

Mrs OBumble wrote: »

OP, I thnk that the laws about discrimination are not the right ones to use here.

I understand that there are some other employment-related laws which effectively mean that the selection criteria need to be relevant to the job. (For example, one of my pet theories is that employers should be incentivised to hire people who live close to work, so as to minimise the environmental impact of the employment. I've been told that this would be illegal, because place of residence doesn't determine suitability for the job.

But I'm not a lawyer, I cannot tell you what laws apply. And they likely would be expensive to take an action under because they are complex.

In the bigger picture, it's likely there's some factor about the likely future of the job or organisation which makes this experience desirable. Either that, or they really do want to limit the number of people who can apply. I suspect that you might be picking a difficult battle here, which ultimately you won't win.

BTW - you can apply, there's nothing stopping that. But you would do so knowing that your application would likely be disqualified as soon as they check applicants for the stated experience.

Thanks for the great reply ! I suspect they want to limit the number of people who apply, in fact i know who will get the job

Its just frustrating that this is a deliberate act to rule out certain people who are more that capable of the role.

Thanks again.

antoswords

Dav010 wrote: »

This is taken from a legal/HR site in UK:

“Can employers specify a minimum number of years' experience in job advertisements?

A requirement to have a minimum number of years' experience or previous service is potentially indirectly age discriminatory against younger candidates, who are less likely than older workers to be able to meet the requirement.

It would therefore be for the employer to justify the need for a certain number of years' experience. Certainly after the first few years, judging competencies by reference to years of experience is not reliable. This is because a great deal of experience is gained during the first few years of employment, but this then tends to "level out". There is, for example, probably little difference in competence between someone with, say, 10 years' experience and someone with 12 years' experience.

Clearly, it is quite legitimate for an employer to wish to appoint a job applicant who is suitable to fill the particular vacancy. However, instead of specifying years of experience or service, which is time-based so potentially indirectly age discriminatory, employers should specify the type, breadth or level of experience needed for the particular job and the skills and competencies required. Employers can use the person specification to assist in the drafting of a suitable advertisement.”


Op, in your case, by advertising experience required in a particular facet of the job, though you feel it is unrelated, they appear to have covered themselves. In fact your assertion in your op that it be based on the experience in the job may in fact be an example of indirect age discrimination. Is this in the public sector?

Hi Dav,

Thanks for the detailed reply, i appreciate it.

Yeah, i think they have covered themselves legally, but to me and others here is blatantly obvious what they have done in order to get the person they want.

Yes, its public service.

Cheers

randomrb

antoswords wrote: »

The advertisement contains criteria that prevents some workers with the requisite knowledge, skills, experience and attributes from applying for these positions.

Surely every job advertisement does this? Discrimination and indirect discrimination is part of Recruitment processes if we took your line of reasoning then you could never ask for fluent english as a requirement as you are indirectly discriminating against non-nationals.

Your couldn't require college level degrees as that would indirectly discriminate against travellers who statistically have lower rates of graduation.

In regard to you issue about unnecessary qualifications as far as I know there is absolutely no law about reasonable job requirements. McDonalds could ask for a doctorate in Physics to be a toilet cleaner if it wanted.

The only exception which can come into play is part-time workers v Full-time workers. if there is an internal requirement for promotion that could only be fulfilled by a full-time worker that is illegal. eg certain training days