Friday, 30 July 2021 14:26

Beware the Serial Litigators

We’ve been longing for things to return to ‘normal’ for well over a year now, but we should remember that the normal that we used to know and love wasn’t all unicorns and moonbeams. It hasn’t taken long for some people to revert to their old, questionable ways and we were starkly reminded of this when we were involved in a case of someone who can only be described as a professional litigator.

Most of us will already know that individuals don’t have to have attained employee status before they can be discriminated against and therefore enter a Tribunal claim. The Equalities Act applies from the outset of the recruitment process, so a claim can occur if a job advert or the recruitment process is felt by the applicant to be discriminatory.

We don’t believe that anyone would deliberately discriminate when recruiting new employees, but we must remain diligent of anything that we might think is innocent but could be interpreted as otherwise by others. In the online world, there seems to be a group of people who are deliberately on the lookout for things to be offended by.

As we get to grips with the new recruitment options that digitalisation presents, such as recruiting through Linked-In, we must ensure that our processes remain unambiguous and water-tight in regards to discrimination. Online profiles can provide more information than we would traditionally be accustomed to, including details presented visually through images. This creates more opportunity for unconscious bias as gender, age and race are all discernible in a fraction of a second.

In our case in point, the applicant had claimed unfair treatment because he had disclosed a mental health condition at application. In actual fact, his disclosure had not been read and he had been deselected on other criteria. Thus, he had been treated equally, and not less favourably to other applicants; exactly what the Equalities Act is meant to achieve.

Unfortunately, this didn’t stop him entering a Tribunal claim which, it was later discovered, was one of over 40 such claims that this individual had submitted.

The case of Royal Mail vs Mr Efobi, heard at the Supreme Court, should come as some comfort to those facing similar claims. In short, Mr Efobi had claimed he was overlooked for various jobs within the Royal Mail, where he already worked, and cited race discrimination. The judgement of the Supreme Court effectively confirms that the burden of proof that discrimination has taken place lies with the claimant. It does not lie with the respondent to prove that discrimination has not taken place. Full details here. https://www.supremecourt.uk/cases/uksc-2019-0068.html

This doesn’t let anyone off the hook however. We must continue to be absolutely impartial in our actions and processes. Using phrases that describe positions as suiting either a young or a mature person instantly crosses the line. Specifying too that you are looking for someone of a particular gender, unless there is a cast-iron reason to do so, is an absolute no-no.

During the selection process, scoring systems are usually a good method for shortlisting applicants for interview. Depending upon the vacancy, you could award scores for relevant qualifications, experience in similar roles and/or business sector, career continuity and IT skills. Make sure that any scoring system you use is applied consistently and fairly to all applicants. Hold on to your results for six months as evidence that a fair process was followed.

When you get to interview stage, continue to be conscious of the questions you ask. Health and disability issues do not have to be declared until after a job offer has been made and accepted unless the issue relates intrinsically to the role.

Asking a female applicant if she plans to have children in the future is blatant sexual discrimination, but now that there is Shared Parental Leave, asking the same of a male applicant could also get you into hot water.
Ultimately, you should always aim to employ the best person for the job regardless of any other factors and after following a fair and unbiased process.

If you’re recruiting and would like a review of your vacancy ad or recruitment processes call us on 01452 331331 or e-mail This email address is being protected from spambots. You need JavaScript enabled to view it.


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