Indirect discrimination in recruitment: lessons from a recent WRC decision

The case resulted in a €40,000 award, significantly exceeding the usual €13,000 cap for access-to-employment claims. It is a clear signal that recruitment practices are under increasing scrutiny and that poorly designed criteria can carry real financial and reputational risk.

What happened

The complainant, a deaf candidate and native Irish Sign Language (ISL) user, applied for the role of Advisor Deaf/Hard of Hearing (ISL) supporting the deaf and hard-of-hearing community.

Despite holding a PhD in Deaf Education and being highly qualified, he was not shortlisted. 

The reason:
He did not hold a formal qualification in ISL, even though he was a native user.

The selection panel also relied on a requirement for “excellent oral communication skills”, raising questions about whether this criterion was appropriate for a role dedicated to the deaf and hard of hearing community.

Where the process went wrong

Several issues emerged:

• The requirement for an ISL qualification “or equivalent” was interpreted too narrowly
• Native fluency and professional experience were not recognised as equivalent
• Criteria were applied rigidly rather than proportionately
• An internal review later found the candidate did meet the essential criteria
• However, the competition was not reopened, leaving the issue unresolved

The WRC found that these factors, taken together, amounted to indirect discrimination – largely due to the administrative rigidity that corrected an error but provided no remedy.

Why this matters for employers

This case highlights a recurring challenge in recruitment:

Criteria that appear neutral on paper can have disproportionate negative effects on protected groups if they are not drafted and applied with care.

The case also demonstrates why employers need to treat essential and desirable criteria as legal tools, not administrative conveniences.

• Essential criteria should represent the minimum threshold needed to perform the role
• Desirable criteria should support differentiation among qualified candidates.

If the distinction is blurred or if the criteria do not reflect the realities of the role, candidates may be excluded unfairly or unlawfully.

It also highlights a broader risk:

• Over-reliance on formal qualifications
• Lack of flexibility in decision-making
• Processes that identify errors but fail to correct outcomes

A notable shift in compensation risk

Under Section 82(4) of the Employment Equality Act 1998, compensation in recruitment stage discrimination cases is capped at €13,000.

In this decision, however, the adjudicator found the statutory cap inconsistent with EU Directive 2000/78, which requires sanctions to be “effective, proportionate and dissuasive.” As a result, the WRC award of €40,000 sets aside the heretofore national limit.

While this aspect may be subject to appeal, it signals a potential shift in employers’ financial exposure.

Practical steps for employers

To reduce risk and improve hiring outcomes, organisations should:

• Define criteria carefully

Ensure essential and desirable criteria reflect genuine role requirements and are objectively justified

• Focus on capability, not credentials

Assess whether formal qualifications are truly necessary or whether experience or lived expertise is sufficient

• Use clear, unambiguous language

Avoid wording that can be misinterpreted by hiring panels

• Train hiring managers and selection boards

Build understanding of equality legislation and consistent decision-making

• Build flexible review processes

Ensure errors can be corrected in a meaningful way, not just identified

• Test criteria for unintended impact

Consider how requirements may affect different candidate groups

How Forvis Mazars can support

At Forvis Mazars, our People Consulting team works with organisations to design recruitment processes that are both effective and compliant.

We support clients to:

• Review and redesign job criteria and competency frameworks
• Assess recruitment processes for equality and inclusion risks
• Deliver training for hiring managers and interview panels
• Strengthen governance and documentation
• Align hiring practices with legal and regulatory expectations

Conclusion

This case is a significant reminder that equal access to employment is a core legal obligation, not a procedural formality.

Poorly designed criteria can exclude the very candidates organisations are trying to attract, while also exposing employers to significant risk.

Getting it right means building processes that are fair, flexible and grounded in the real requirements of the role.