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Ask Buachaill Your Own Question
Buachaill
Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10623
Experience:  Barrister 17 years experience
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Hi there, I applied for a promotion and was unsuccessful. I

Resolved Question:

Hi there, I applied for a promotion and was unsuccessful. I feel that the process was unfair as the interview did not take into account one of the essential requirements set out clearly in the person spec for the position. There were NO interview questions on that area of expertise and experience and so they would not have featured in the criteria for selection. As it turned out the successful candidate does not meet that essential requirement. I have received feedback that I did very well in all areas of questioning, but the area not examined would be my key strength. All candidates were internal. Hence, I feel the process has been very unfair. Is there a way to challenge such decisions? I live in IReland

Submitted: 3 years ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 3 years ago.

Buachaill :

1. At the outset, you need to realise that the Constitutionally guaranteed right to fair procedures in decision-making in Ireland, as well as the Article 6 guarantee in the European Convention on Human Rights mandate a system for the manner in which decisions are made. However, they do not guarantee you that the decision will be taken the way you want and with the result you want. Accordingly, whilst the guarantee of fair procedures would be applicable to the employment promotion decision making, it only relates to the manner in which the decision was made. This means that parties must be interviewed and assessed before the decision is reached and the result, together with reasons must be communicated to the applications. However, it does not guarantee that within the interview, that specific questions will be asked in relation to one of the requirements laid down in the specification for the job. This is a matter for the discretion of the decision maker, as to how they reach their decision within the parameters laid down. There is no requirement that one of the specifications for the person concerned should be elevated to a compulsory decision making quality or tie breaker. The law will not strike down a decision reached which did not give the weight you want to one specification laid down in the job specification which was your strong point and which the person who got the job was weaker in. I regret to say that this is the view the law takes. The courts do not second guess decisions reached. They only look to see if the decision maker followed certain procedures in making the decision. The courts do not re-make the decision.

Customer:

Thanks for that advice. So if I was to challenge on procedural grounds, the choice of criteria in itself would not present a legal challenge. If the criteria were set following receipt of the applications (so once the panel had knowledge of who the candidates were) would that matter?

Customer:

Also, during the interview I was specifically asked "How would I feel about managing older, more mature managers?" At the time I was taken aback by the question as I thought it inappropriate. Is this grounds for discrimination?

Customer:

Finally, from your response my understanding it that whilst it is good practice, there is no legal requirement for selection criteria to examine all essential requirements for the job? So the idea "essential" requirements in a person spec has no standing in law? It is perfectly legal for an employer to give a promotion to someone who objectively does not have one essential requirement over someone who meets all the requirements on the basis that they may offer additional experience in some of the other requirements. So exceeding requirements in other areas is allowed to make up for not having it in another.

Buachaill :

2. Criteria have to be set in advance. Not after receipt of applications. What occurred in your situation is known as "shifting the goalposts" and is a valid ground for review as this type of behaviour infringes the law of fair procedures.

Buachaill :

3. The Question about managing older, more mature managers is not necessarily outlawed. Whilst it is undoubtedly ageist, you would have to have some entry in your reasons for non-acceptance which related to this which showed it formed some basis for discrimination. The question itself would not get your over the line in legal terms.

Buachaill :

4. At the outset, the requirements in a candidate specification forms, as you were, the pitch within which the selection should take place. But as with a field of play in a soccer match, there is no requirement that every blade of grass should be covered or that any part of the field of play is mandatory. Courts will not enter onto the field of play and rule something unlawful merely because one criteria has not been filled. The law reports contain many examples of this not occurring. I regret I cannot give you a different answer on this point, but this is how the law operates.

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