If a person is not offered a job as a result of their protected characteristic they may bring a claim for discrimination against the employer. Unfortunately, this has led to some people taking advantage of this protection and applying for a job they have no genuine interest in securing. The good news for employers is that a job applicant whose only purpose is to bring a discrimination claim, rather than genuinely wanting the job, will not be entitled to protection under the Equal Treatment Directive (and the Equality Act in the UK).
The recent case of Kratzer v R + V Allgemeine Versicherung AG reinforces this position. Mr Kratzer applied for a trainee solicitor position claiming he was a lawyer and former manager with an insurance company. Mr Kratzer's application was rejected, after which he contacted the company demanding compensation of 14,000 for age discrimination. The company later invited Mr Kratzer to an interview which he declined until his compensation claim had been satisfied. The European Court of Justice ("ECJ") held that Mr Kratzer was not entitled to any compensation. The ECJ stated that the Equal Treatment Directive was introduced to protect those in employment or seeking employment. In this case, Mr Kratzer was not genuinely seeking employment and was therefore not covered by the protection.
The question employers need to ask themselves is 'if the applicant was offered the job, would they have accepted it?'
This question was considered in Keane v Investigo and others. In this case, Keane was a highly qualified accountant aged 51. She applied online for a number of positions which were suitable only for newly qualified accountants with limited experience. When her applications were disregarded and she was not offered an interview she would claim age discrimination. The Employment Tribunal held that the claimant's job applications were not genuine and were merely an abuse of the process. The Employment Tribunal decided that if an applicant is not genuinely interested in securing the job then they cannot be said to have suffered a disadvantage or a detriment as a result of being refused the job. This case outlined several factors to consider such as the applicant's attitude, application and suitability. Employers should be wary of an applicant whose credentials do not suit the job requirements.
Identifying a serial litigant
The next question is how to deal with people who apply for jobs with no apparent qualifications for the job, and you suspect that they are really applying so that they can try to issue a discrimination claim against you when you reject their application.
There is some history of so-called "serial litigants" who apply for jobs they have no hope of getting, with the aim of threatening a claim against the employer under discrimination law, with the hope that the employer will settle their claim with a payment.
In the past, the fact that Employment Tribunal judgements are only recorded on paper in Bury St Edmunds for English and Welsh decisions (and in Glasgow for Scottish decisions) has meant that it has been difficult for employers to find out whether such people have a history of trying this on. However, HM Courts and Tribunals Service has announced that new Employment Tribunal decisions will be made freely available to the public via a new searchable online database from Autumn 2016.
This is a big advantage for employers who currently find is very difficult to identify a serial litigant. Being able to freely access new Employment Tribunal decisions will enable an employer to see whether an applicant has a record of bringing claims to the Employment Tribunal. Although this may have little impact in the short term due to only new Employment Tribunal judgments being made available online, it may act as a deterrent for those applying for jobs with the sole purpose of claiming discrimination.