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Indirect Discrimination

Crilly v Ballymagroarty Hazelbank Community Partnership NIIT/242/11

NI Employment Tribunal ruling on how an employer can indirectly disciminate a job applicant

Date added: 10 January 2012

This Northern Ireland industrial tribunal decision is a good example of how an employer can indirectly discriminate against a female job applicant by making it a requirement to have a number of years' relevant experience within a narrow time frame, something that is more difficult for women who have been raising a family to achieve.

Mrs Crilly applied for the six-month fixed-term post of neighbourhood regeneration officer with a charity, Ballymagroarty Hazelbank Community Partnership. The employer had as one of its shortlisting requirements that applicants have a "3rd level qualification in a relevant discipline with 2 years' relevant experience in a community development capacity (paid) gained within the last 5 years".

Mrs Crilly was not shortlisted for the post, with the reason given being that she failed to meet the required experience levels in the previous five years. She had been on a six-year break from paid work due to her childcare responsibilities.  It was accepted by both parties in the tribunal that, during these six years, Mrs Crilly had "continuing, extensive, high-level involvement in the voluntary sector in the area of community development and neighbourhood regeneration".

Mrs Crilly claimed that it was indirect sex discrimination for the charity to restrict shortlisting to candidates who had two years' paid experience in the previous five years because this requirement had a disproportionate adverse impact on women and could not be justified.

The industrial tribunal accepted that the "provision, criterion or practice" was the requirement to have two years' paid experience in the previous five years. It found that the relevant pool of comparison was "all suitably qualified candidates both male and female within Northern Ireland who could comply with the criterion apart from the five-year stipulation". The tribunal rejected the employer's argument that the pool should be restricted to those suitably qualified for the position and who could meet the criterion (apart from the impugned element in relation to five years' experience) within the "catchment area" of the post.

The tribunal also found that the five-year requirement had a disproportionate adverse impact on women and placed them at a particular disadvantage. In reaching this conclusion, the tribunal relied on the Northern Ireland Labour Force survey, which indicates that a much larger percentage of women (90.6%) than men spend time out of the workplace to "look after family and home". The tribunal panel's knowledge of the workforce backed up the claimant's assertion that women are placed at a particular disadvantage by the five-year requirement.

The industrial tribunal went on to find that the criterion put Mrs Crilly at a particular disadvantage because her relevant paid experience occurred before the five-year period and this meant that she was eliminated at the shortlisting stage. She was unable to proceed to the interview stage to outline how her recent voluntary and other community activities made her a suitable candidate for the job.

The tribunal considered whether or not the employer could rely on the defence of justification. The employer argued that its legitimate aims included the need to have someone in the job who could:

perform with minimal supervision; and
do the job without the need for extensive training ("hit the ground running").  

The industrial tribunal was not satisfied that the employer's means of achieving its stated aims were sufficiently connected to the aims or proportionate. The employer's argument that it needed someone who could "hit the ground running" was undermined by the fact that its shortlisting requirements allowed someone who had not had the relevant experience for three years (by gaining the required two years' experience in the first two of the five stipulated years) to be shortlisted. In any event, there was a two-month induction period that would have allowed Mrs Crilly to be brought up to speed with any new policies or action plans in the urban regeneration field with which she was not familiar.

The tribunal estimated that, if she had been shortlisted, Mrs Crilly would have had a 50% chance of being recruited. It awarded her £14,677, which included £5,000 for injury to feelings.


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