Posted: Thursday 11 February 2010
Litigant Discrimination Claim Tactics
A noteworthy case from the Employment Appeal Tribunal yesterday. In Keane v Investigo and ors, an individual made lots of job applications for roles (appearing to be aimed at newly qualified accountants) which were significantly below her level of expertise. When she did not get invited for interviews, she lodged Tribunal Claims alleging age discrimination against 11 different potential employers. Six settled and five went to a hearing. At that hearing, the Tribunal found that the applications had not been genuine and therefore (due to a concession her lawyers made) there could be no detriment as she did not want the jobs in the first place. The Tribunal awarded costs against the Claimant.
This is an interesting decision and the EAT have made it clear that in these circumstances, where the applicant is not genuinely interested in obtaining the role, the fact that she was then not considered for the job, cannot amount to a detriment. Given that costs were awarded against the Claimant, it seems the Tribunal took a dim view of her conduct, which appeared to be an attempt to obtain compensation under somewhat false pretences.
I have been aware of a variation of this sort of situation going on for some time. This involves an individual sending in two virtually identical job applications with one, for example, declaring a disability (or other protected characteristic) whereas the other does not mention it (another example is putting two applications, one where the applicant’s age is given considerably lower than the true age and the other declaring the true age). If the application which does not declare the protected characteristic is progressed whereas the other one is not then on the face of it the individual has a valid claim. This tactic, I understand, has been used by a variety of “career litigants" to force a settlement from certain organisations.
Despite the decision of the Employment Appeal Tribunal this does highlight the need for employers to be very careful to ensure that they do not discriminate (either inadvertently or otherwise) during their recruitment process. Various steps can be taken to minimise the risks of facing the sort of claim mentioned above. Our factsheet – “How To Avoid Discriminating When Recruiting Staff” may be of interest to anyone involved with the recruitment process.
