Protect yourself from serial litigants targeting your recruitment process

A recent judgment in the Employment Appeal Tribunal (EAT) has highlighted where a flaw in a recruitment process may expose a business to costly legal action. What is notable about this case is that the Claimant (“M”) may be described as a “serial” litigant, known to have brought at least 60 claims against both recruiters and potential employers relating to the completion of online forms when job-hunting.

In some cases M’s claims had been struck out or withdrawn following settlement. What is not known is how many further claims had been threatened and settled before legal action was taken.

The difficulty with the recent case in the EAT is that there was some basis for M’s claim in terms of disability discrimination law – it was not so unreasonable or vexatious that the tribunal would not consider it. This went to a full hearing and then a full appeal. The Claimant was successful in both.

How was the recruitment process flawed?

Let’s look at the broad facts of the case to understand what could have been done to avoid this discrimination claim.

The recruitment process here involved a short online application form which required job applicants to create a profile with a username and password. M sent his CV by email explaining that he has dyspraxia and so he could not complete the application form. M requested an oral application. The business sent him some follow up emails asking him for information but still insisting that the online form had to be completed. They did not receive an answer by email.

M brought a claim for failure to make reasonable adjustments for his disability under the Equality Act 2010 – a form of disability discrimination – by requiring him to complete an online form rather than an oral application. The Employment Tribunal found in his favour and the business appealed that decision to the EAT on the basis that the Claimant had not responded to their emails to explain what his specific difficulties were in completing their online application form.

What is the legal test and who might be liable?

An employer must not discriminate against or victimise a person in the arrangements it makes for deciding to whom to offer employment. “Arrangements” would cover all aspects of the recruitment process including job specs, job advertisements, method of application, location and timing of interviews as well as physical arrangements.

An employer is not under a duty to make reasonable adjustments if it does not know, and could not reasonably be expected to know, both that an applicant has a disability and that they are likely to be placed at a substantial disadvantage in relation to the relevant matter compared to those who are not disabled, i.e. the employer should be aware (actually or constructively) of the particular disadvantage, not just the disability generally.

The job applicant may claim against all, or a combination, of: the employer, recruitment business, agent or consultant, or any individual employees who were responsible for any discrimination. In relation to the unlawful acts of individual employees, a business may be vicariously liable unless the business can show that it took all reasonable steps to prevent the discriminatory act (the statutory defence).

What was the EAT’s finding?

The EAT held that the business ought to have had the requisite knowledge of the Claimant’s disadvantage because it ought to have telephoned M, as he had requested, to ask for more details of his difficulties when he had failed to respond to their email questions.

In reaching its decision, the EAT considered previous case authorities and noted that a balance should be struck. On the one hand a disabled job applicant should not have to “harp on” about their disability and on the other it would be undesirable for an employer to be required to ask a number of questions about a person suffering from a disability, as to whether they feel disadvantaged.

What is clear is that the employer cannot turn a blind eye. This in reinforced in the Equality and Human Rights Commission’s Statutory Code of Practice (para 6.19) which states that an employer must “do all they can reasonably be expected to do to find out whether” an applicant has a disability and is, or is likely to be, placed at a substantial disadvantage. What is reasonable will depend upon all the circumstances and this should not be a one size fits all approach.

Notably the EAT remitted the case back to the tribunal to consider the question of whether M was a genuine job applicant or if he was trying to engineer a tribunal claim.

A relatively simple fix in your process?

Most recruitment processes make clear to job applicants in some form or another that they should be in touch if the applicant requires reasonable adjustments to the process. As we can see from this EAT judgment, this may not be sufficient to discharge the potential duty to a disabled job applicant.

Why did M not telephone the business? He said he was in fear of being laughed at in light of a previous experience with another employer. His position was that the business should have called him so that he could have provided the specific details to them by phone. The EAT agreed that the business should have telephoned M.

Tips

The EAT noted “an employer is not required to make changes in anticipation of applications from disabled people in general – although it would be good practice to do so”. The key take-away from this seems to be to ensure that a communication with an applicant which does not follow your set recruitment process for a vacancy, does not get missed or ignored.

• Review your application process
• Provide training to all recruiters on equality and diversity in respect of the recruitment process, including the duty to make reasonable adjustments
• If an applicant states that they have a disability, make reasonable enquiries as to their particular difficulties
• Consider what reasonable adjustments may be made to the application process in in view of the difficulty identified
• Be prepared to provide a document in an accessible format if requested
• Consider what might need to be done to your process to ensure that email or telephone communications relating to a vacancy do not get missed
• Keep records of training provided, internal policies and document the recruitment process
• Check that any use of AI or automated sifts will not miss notification of a disability about which adjustments in the process might need to be made

Press reporting on M’s earlier employment tribunal cases suggests that HR and recruiters ought to vet applicants including by checking the employment tribunal decision database. Be careful as this could expose the business to a further claim for victimisation and possibly unlawful blacklisting although it might be difficult for a Claimant to evidence.

The judgment may be found here:

https://www.gov.uk/employment-appeal-tribunal-decisions/aecom-ltd-v-mr-c-mallon-2023-eat-104

Our Employment team has considerable experience in advising businesses and recruiters on the recruitment process and defending employment tribunal claims, including those involving serial or vexatious litigants. Should you require any assistance with regards to a possible employment tribunal claim against your business or would like assistance with a review of your recruitment process, please do not hesitate to contact partner Clare Gilroy-Scott or any member of the Employment team. We are experts in this field and we are here to help.

 

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