Comparison of merits

According to the Equality Act the employer always has to carry out a comparison of merits when there are both male and female applicants. The comparison of merits considers the applicants' education, previous work experience and such characteristics, knowledge and skills that bring are advantageous when carrying out the duties. The merits included in the comparison must be unambiguously and objectively demonstrable. Only the merits that have been accrued by the end of the application period, and which the person making the selections has had access to during the recruitment process, can be taken into consideration.

Suitability, aptitude, ability and other subjective personal attributes of applicants are not the kind of merits that are referred to in section 8(1)(1) in the Equality Act. They can, however, be used as selection criteria by the employer, and they can be taken into consideration as potential justifications for the employer choosing a less qualified applicant.

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). Regarding appointments to public office, the general grounds for appointment in section 125 of the Constitution must also be taken into consideration. These are skill, ability and proven civic merit. Anyone who is to be appointed to public office must also fulfil the qualification requirements that may be laid down by a law or regulation.

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 duties without being guilty of discrimination as prohibited by the Equality Act (KKO 2005:24, KKO 1996:141). Therefore the applicants' merits should be assessed in particular in relation to the weighting factors that have been established by the employer. It must also me possible, however, to justify the weighting factors chosen by the employer in relation to the performance of the duties in an objective way.

As long as applicants meet the eligibility criteria, a higher level of educational attainment is not necessarily considered an additional merit. In case-law, the suitability of the contents or the orientation of the education has more significance in relation to the position that is being advertised.

The position taken in case-law regarding work experience has been that even large differences in the amount of years of service may not necessarily mean that the person who has been in the job longer will be 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.