by Julie Austin, Associate in the Employment Law Team at McDowell Purcell Solicitors
In a recent decision issued by the WRC, an Adjudicator recommended that the respondent, a state body, should review its practice of requiring job applicants to include photographs with application forms.
The case was brought by a Clerical Officer who claimed that he was discriminated against on the grounds of age contrary to the Employment Equality Act 1998 (as amended).
The claimant was employed in the role as a Clerical Officer for ten years. In June 2016 he applied internally for a promotion to the role of Executive Officer (“EO”). Following the interview the claimant was informed that he had not been successful in progressing to the next round. The claimant submitted that he was not promoted due to his relative youth in comparison with other candidates. In support of this, he claimed that during a competency based interview, the panel asked him if his colleagues were older than him, how he would handle working as an EO given his young age and how he would manage an office where the staff were older and more experienced than him.
The claimant submitted that he was required as part of the application process to submit a photograph of himself. He alleged that the requirement to provide a photograph allowed for the possibility of discrimination on the grounds of age. The respondent disputed this on the grounds that Section 5 of the Public Service Management (Recruitment and Appointments) Act 2004 provides that “in respect of a competition for a position within the public service, a person shall not…personate a candidate at any stage of the recruitment and selection concerned”. The respondent also referred to the Commission for Public Service Appointments Code of Practice for Appointments to the Civil and Public Service which states “a third party must not personate a candidate at any stage of the process“. It was argued by the respondent that the requirement to submit a photograph is objectively justified and is not prejudicial to any candidate or to the claimant.
The claimant also put forward statistical evidence from the interview centre he attended which he claimed pointed to age discrimination, which was disputed by the respondent.
The Adjudicator noted that it was clear from the evidence adduced that the claimant himself had brought up his age during the interview first by saying that “he was the youngest and not the most experienced” candidate. In dismissing the claim, the adjudicator found that the interview panel had used the same questions for each candidate and the claimant was not asked anything inappropriate or discriminatory. The Adjudicator also dismissed the claimant’s assertion that the statistical evidence from the interview centre pointed to discrimination and noted that in fact, the statistics showed that a large number of successful candidates came from the same age group as the claimant.
However the Adjudicator did observe that the requirement for candidates to provide photographs was open to allegations of prejudice and expressed doubt as to whether the requirement was legally required as argued by the respondent. He noted that the requirement for photographs to be included with job application forms had long ceased in many practice areas. He recommended that the respondent and other State bodies should review this practice.
About the author
Julie is an Associate in the Employment Law Team at McDowell Purcell Solicitors. A large part of her work includes providing advice to HR functions on day to day matters. Julie also has extensive experience in all forms of employment disputes including unfair / wrongful dismissal, applications to restrain dismissals, discrimination, redundancies and industrial relations.
