In the recent case of General Operator v County Council ADJ-00033754, the employee was engaged in the environmental section of the employer organisation. At times he was expected to “act up” into the role of foreman and was paid for this.
During 2021 the employer held a competition to fill the role on a permanent basis. Whilst the employee naturally believed himself to be qualified for the role, the essential criteria for the role included an active C licence. The employee was upset by this as no C licence was required by him to act up into the role, nor had one been required during his tenure.
The employee wrote to his employer in advance of the competition, setting out his views in relation to it and seeking to have the requirement for the C licence removed however his employer would not agree. As a consequence of this, the employee was effectively barred from applying from a role that he had been fulfilling on a temporary basis. The employee argued that the criterion in question was not in fact essential as he had been fulfilling the role on a temporary basis without the need for an active C licence. The employer stated that they are entitled to set the criteria for selection based on their own requirements and the requirement for a C licence was not unreasonable and was consistent with previous competitions.
Workplace Relations Commission
The Workplace Relations Commission noted that a category C driver’s licence was not an essential requirement for the foreman role and the employee had been acting up in the foreman capacity for some time without the need for such a licence. It also appeared that the employer’s section did not in fact utilise any vehicles that would require such a licence and that such a requirement was potentially a “preferred qualification, rather than an essential requirement”. It was also observed that an employer could appoint an employee to the role on the understanding that they would work towards achieving the qualification within a certain timeframe.
The Adjudicator found that the employer “acted unreasonably in designating the requirement to have a C licence as an essential requirement for the role”.
As the competition had ended, it was recommended that the employer pay the employee the sum of €2,000 in compensation and remove the criterion in question as an essential requirement for further competitions.
In the office, we receive a lot of queries in respect of “acting up positions” and whilst the above recommendation is not legally binding on the employer (i.e. they do not have to pay it), it is very important to take legal advice as soon as possible to ensure you are fully aware of all legal options available to you.