Guest blog by Sonia Tse, Employment Law Adviser, Ellis Whittam
There have been reports of public sector organisations and charities receiving job applications from people whose only aim is to pursue discrimination claims when they are rejected.
Employers have reported applicants applying for a job, despite the fact they do not meet the requirements of the vacancy and are clearly unsuitable for the position, or demanding high levels of reasonable adjustments, such as the provision of paid-for overnight accommodation and a carer to attend the interview with an applicant. They inform the employer that they have particular needs due to their disability.
When they are not selected for interview, they claim that employers are breaking discrimination laws and demand compensation.
Whilst there has been a recent surge in such cases, this is actually quite an old trick.
In some cases, employers are confronted with bogus job applicants – those individuals who apply for roles with the aim of pursuing compensation claims against employers, rather than to obtain employment. In others, they will have to contend with serial litigants – a person who brings numerous claims in employment tribunals.
It can be extremely vexing for employers, who can feel they need to agree to a settlement before it goes to employment tribunal proceedings.
Don’t get caught out! Understand the law and what you can do to avoid falling victim to these demands.
What do the courts say?
- European Court of Justice
The European Court of Justice (ECJ) recently considered a job applicant who was a lawyer and a former manager and had been rejected for a legal trainee position. The applicant claimed that he was discriminated due to his age and demanded compensation. The employer asserted that the rejection had been automatically generated in error. They asked him to interview, but the applicant refused. He claimed further compensation, arguing that he had also suffered sex discrimination. He discovered that although there had been over 60 job applications for the vacancies and the applications were equally submitted between men and women, all four posts had been given to women.
The ECJ clearly stated that an individual who is not seeking to obtain the role they are applying for is not covered by legal protection. If a person is only applying for a role in order to bring a claim of discrimination against an employer, they have not suffered any loss or personal injury and cannot be considered a victim. Individuals cannot use EU law to commit fraud or an abuse of rights.
- Employment Appeal Tribunal
In a similar case, an experienced accountant applied for over 20 jobs which were appropriate for someone who did not have much experience. When she was not offered an interview, she claimed age discrimination. Some of the companies settled with her, but others proceeded to an Employment Tribunal.
The Employment Tribunal and Employment Appeal Tribunal found that the applicant had not been discriminated against. It was clear to the tribunal that her job applications were not genuine – she did not tailor her applications; she submitted complaints before knowing whether her application had succeeded and she could not explain why she was applying for such junior roles. She was ordered to pay the employer’s costs.
What can we do to protect ourselves?
Spotting such applications or serial job applicants is not always easy. Understanding an applicant’s motivations is even harder. However, if you are suspicious, or need advice on what kind of reasonable adjustments are required for a disabled applicant, you should seek legal advice at the earliest opportunity.
In any case, to avoid discrimination claims, remember to follow a fair recruitment process:
- Ensure that the phrasing and terminology used in job advertisements do not discriminate on the basis of any of the protected characteristics in the Equality Act. This includes age, disability, race, religion, sex, etc.
- Avoid making assumptions when sifting through the applications. Focus on who best matches the job and person specifications. If possible, two or more people should be involved to ensure the sifting process does not reflect one individual’s prejudice.
- Take care that the questions you ask in interviews are not discriminatory.
- All recruitment decisions must be clearly reasoned and documented.
- If you are using automated selection criteria to screen job applications, please be aware discrimination may still happen.
- Train staff so that they understand equality laws.
- Ensure that reasonable adjustments are made for attending interview.
If you have any questions about your job advertisements, please give us a free initial advice call. Members, please contact 0845 226 8393, ask for the Partnerships Legal Team and quote your ACEVO membership number.