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Suspected case of recruitment discrimination (TAS 335/2019, issued on 16 April 2020)

Suspected case of recruitment discrimination (TAS 335/2019, issued on 16 April 2020)

A male referred to as Mr A asked the Ombudsman for Equality to investigate whether the City of X had acted in a manner prohibited by the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act) in a recruitment process, when he had not been selected for one of 13 "duuniagentti” positions, but a female referred to as Ms. B was selected.

Discrimination in recruitment prohibited by the Act on Equality between Women and Men

In its statement, the Ombudsman for Equality primarily gives an opinion on legal questions concerning the interpretation of the Equality Act. As a rule, the Ombudsman for Equality does not compare merits in cases of suspected discrimination concerning recruitment.

According to section 8, subsection 1, paragraph 1 of the Equality Act, the action of an employer shall be deemed to constitute discrimination prohibited under the Equality Act if the employer, upon employing a person or selecting someone for a particular task or training, bypasses a more qualified person of the opposite sex in favour of the person chosen, unless the employer’s action was for an acceptable reason and not due to gender, or unless the action was based on weighty and acceptable grounds related to the nature of the job or the task. The procedure does not need to be deliberate or negligent in order to be discriminatory and it does not need to have been motivated by discriminatory intent.

The Equality Act obligates employers to perform a qualification-oriented comparison when the pool of applicants includes both women and men.  The Equality Act obligates employers to assess, for the purposes of their recruitment decision, the merits of an applicant or at least provide the applicant with the opportunity to present them. The obligation to carry out a comparison of merits applies to all applicants, not only to those selected for an interview.

Merits must be assessed in the light of the position in question and on the basis of the selection criteria that the employer has established before advertising each position (Government Bill 57/1985). The comparison of qualifications must pay attention to the applicants’ educational background, previous work experience as well as any qualities, knowledge and skills that could be of use in the job and that could therefore be considered to constitute additional merits.

Even though the selection criteria set in advance by the employer plays a key role in the comparison of merits in accordance with the Equality Act, when making the selection, the employer can appeal to matters relevant to the management of the action, even if these have not been mentioned in the application notice. In this case, the burden of proof to justify that the criterion was significant with regard to the performance of the duties included in the position lies with the employer.

When comparing education, the most important factor is the suitability of the content of education for the performance of the position for which the individual is applying. If the person meets with formal qualifications, higher education may not be considered an additional merit. The position taken in case-law regarding work experience has been that even large differences in the amount of years of service do not necessarily mean that the person who has been employed longer is considered to be more qualified. Only significant differences in the number of years of service have been seen as important.

A certain length of experience is required to acquire familiarity with each task. The length of experience that is seen as sufficient varies from task to task. Regarding the contents of the work experience it is not only relevant whether or not the person has gained their experience in a similar position to the one they are applying for, as experience that is suitable for the position may also have been acquired in other types of work.

The Equality Act’s objective is not to restrict the employers’ right to choose the candidate they consider the best for a particular job, but to ensure that the choice is not based on gender. The employer has the right to assess and assign weighting factors to applicants' merits in a way that they deem best for ensuring the successful performance of the employee’s duties without being guilty of discrimination as prohibited by the Equality Act. However, the employer's emphasis must not be arbitrary, but it must be objectively justified in terms of the tasks to be performed.

Suitability for the position and aptitude are not merits referred to in section 8, subsection 1, paragraph 1 of the Equality Act. Even so, these can be used as selection criteria for an employee, in which case they can be taken into consideration as potential Equality Act-compliant justifications for choosing a less qualified applicant. The burden of proof for proving the existence of this justification lies with the employer. If a presumption of discrimination arises in the recruitment process, in order to rebut this presumption, the employer is required to provide evidence that the person selected for the position was better suited for it than the person who claims to has been discriminated against and that this was the real and acceptable reason for the selection. An aptitude assessment can be based on e.g. tests and interviews, but also on accounts of how the applicants have performed previous duties.

Cases concerning the violation of the Equality Act in recruitment are resolved in two phases. First, there will be a comparison of merits between applicants, including education, work experience and skills and knowledge that can be clearly and objectively demonstrated. When assessing the merits of applicants, it is ultimately a question of which applicants have the best professional and other prerequisites for the appropriate and successful performance of the tasks included in the position.

If a person who suspects discrimination can prove that they were more qualified for the position than the person selected, a presumption of discrimination is created. To rebut this assumption the employer must be able to prove that the person selected for the position was more apt for it than the person who was not selected, and that this was the real and acceptable reason for the choice.

Assessment of the case

In its comparison of merits, the City of X had not commented in any way on Mr A’s merits making it difficult for the Ombudsman for Equality to assess the extent to which his merits were considered lesser than those of Ms B.

The Ombudsman for Equality has had access to both Mr A's and Ms B's applications and CV's, the employer's report and Mr A's response. On the basis of these documents, the Ombudsman for Equality determined that there was a presumption of discrimination in the matter. The Ombudsman for Equality found that Mr A could be regarded as a more qualified applicant than Ms B.

In order to disprove the presumption, the employer must demonstrate that actions were due to an acceptable reason other than the applicant's gender. If no such reason can be demonstrated, the selection will be considered to be in violation of the Equality Act.

The Ombudsman for Equality emphasised that they formulate their statements solely on the basis of documentary evidence and, thus, cannot provide any detailed opinions when it comes to evidential matters. The presentation of actual evidence of the merits of the involved parties for the position in question and a detailed comparison of merits and aptitude will be carried out in the district court in connection with the processing of any redress action against the employer. In such a case, the person who suspects discrimination has a duty to demonstrate that he or she was more qualified than the person selected for the position. If a presumption of discrimination arises, the employer must demonstrate that there was an acceptable reason other than gender for a recruitment selection to disprove this presumption of discrimination. Such a reason could be for example the better aptitude of the selected individual. Bringing a compensation action will not require an opinion or other contributing action from the Ombudsman for Equality.