'Reject my application and I'll sue'

Dangers lurk at every turn in the hiring process but there is one that can make life a misery for an employer - the litigious applicant.

These are individuals who use legislation, designed to protect job applicants from genuine cases of unlawful discrimination, as a money-making scam by applying for roles in order to make a formal complaint when they are rejected. They can be difficult to spot, especially if the application makes little impression on the hiring organisation. One applicant who said in his covering letter that one of his interests was gardening claimed at an employment tribunal that he had suffered age discrimination; another repeatedly claimed racial or religious discrimination policies were being used. More News From Financial Times Reward schemes must ‘drive the right behaviours’
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Recruitment Diary November 29 2012
Outside interests making money from great ideas Howard Murfin, director of retail at Assured Recruitment, says avoiding such litigious applicants requires careful preparation: "An ambiguous process could lead to misinterpretation and leave you with a lawsuit if the applicant feels aggrieved or discriminated against as a result. Leave no room for misunderstanding. "It is also becoming increasingly acceptable for employers to carry out background searches that go beyond traditional reference checks. Look at your applicants' history with the courts, run credit checks and note down any litigious behaviour with previous employers." Hirers need to be fully aware of what questions the legislation allows them to ask and which must be avoided. The Equality Act 2010, for example, imposes restrictions on when a hirer can make inquiries about health or disability. Catherine Adams is lead consultant at The Chemistry Group, which provides consultancy on the hiring process. She knows of one applicant who kept applying to a client: "Every time he was rejected he used an excuse to be reconsidered, citing racial or religious discrimination policies." The Chemistry Group client then profiled the candidate against the firm's "five box model" and rejected him again. "Shortly afterwards," says Ms Adams, "they received a solicitor's letter saying the applicant was going to sue them for racial, religious and sexual discrimination. "The applicant's profile, along with the profile of the successful candidate, were sent to the applicant's solicitor who immediately emailed back saying there was no case and it should be thrown out immediately." Helen Monson is consultant solicitor at Setfords Solicitors. She says claims can be time-consuming and expensive to deal with. She recalls the case of a mature job applicant who said in his covering letter "that his wife would be grateful if his application were successful as it would 'get him out from under her feet'. "He also said his interests included gardening and that he had an allotment. When he didn't hear anything, the applicant wrote again and was informed that his application had been unsuccessful. This prompted him to bring a claim to an employment tribunal that the employer had drawn inferences about his age on the basis of the comments in his cover letter and that this was the reason his application had been rejected. "The tribunal rejected his claim, of course, but errors in the recruitment process gave strength to his case in the early days." The case shows how costly small errors in the process can be. Mark Hammerton, partner in the People Group at business law firm DWF, says: "Very few employers consciously discriminate when reviewing job applicants, but it only requires an innocent mistake to land the organisation with a costly legal claim. There is no limit to how much compensation can be claimed." The burden of proof in a discrimination legal claim is onerous, he says, and employers should always have in mind the question "Why did you not hire X?". "The key for those seeking to minimise the risk of legal challenges to their hiring decisions is to have a formalised process in place that is applied consistently and intelligently," he says. This should begin with a job description and specification based around what the employer really needs: "For example, is it really the case that candidates require X years experience, or should the emphasis actually be placed on the quality of an applicant's experience? Such considerations can help employers not only find the best person for the job but also reduce the scope for a discrimination complaint," says Mr Hammerton. "When shortlisting for interview, consistency is critical," he says. "The criteria and process applied should be the same for every application. Sadly, there are some cynical or, depending on your view, determined folk who submit multiple applications with broadly the same quality experience or qualifications but differing dates, ages and/or names. This is where there is no substitute for nous. Treating applications consistently at all times is key. "All interviewers used in the hiring process should have been trained in equality issues and should understand the organisation's equality policies. Questions and tests should be applied consistently for every interview, making necessary allowances for any disabilities." Some simple touches can minimise legal exposure, says Mr Hammerton. "I was once involved with a claim which turned on the hirer not making appropriate lighting arrangements in the meeting room. "While this may be a unique example, it is important to consider if applicants might have any special requirements during the interview. It's a good idea, when scheduling any meetings, to check if they clash with any religious festivals, for example." Nicola McMahon, associate at Charles Russell law firm, says the warning signs can be hard to spot but she adds: "An applicant who does not satisfy the key criteria for the role or who is outside the standard demographic of applicants, but whose application seems to emphasise a personal characteristic which is protected under discrimination legislation could be a potential red flag." Employers need to exercise extreme caution in such cases. It is possible, says Ms McMahon, to check on websites such as www.justice.gov.uk/courts/vexatious-litigants whether an applicant is on a list of individuals barred from bringing legal proceedings. There are also services, such as www.serial-litigants.com, that check whether an individual has pursued employment tribunal claims in the past. The first line of defence, however, is to keep a paper or audit trail of the hiring process and decisions. Mr Hammerton says: "Interview notes can be really helpful, such as 'X failed to give an example of personally driving a business change.' "Clearly, notes referring to the attractiveness (or otherwise) of candidates should be avoided. But you would be surprised at the number of employers who occasionally fall foul of an errant scribble."