REUTERS | A man rides on an escalator in central Seoul, South Korea, June 15, 2016. REUTERS/Kim Hong-Ji - RTX2GAPH

Vexatious v victim: crossing the discrimination line

Most people would agree that bringing tribunal proceedings is a daunting step and not one to be taken lightly. But what about the serial or vexatious litigant? In one recent case, it came to light than a candidate had brought “at least 38 claims that are known about” alleging disability discrimination.   

Most of the claims appeared to be against recruitment consultants, the vast majority of which were dismissed following withdrawal of the claim by the claimant. In at least two of these cases, costs awards were made against the claimant for abusing the tribunal process. In one such case the judge noted:

“[The Claimant] was routinely making claims which were either dismissed or which he withdrew. It is not known if he settled any, but none went to a hearing. It does very much look as if he brought claims to see if he could get a payment in settlement, and then abandoned them. That is not a proper use of the tribunal process, and it is not a reason why potential employers should have to incur legal costs defending claims that a claimant does not intend to pursue.” 

Handling vexatious litigants 

Employers faced with that sort of applicant (effectively branded a vexatious litigant whose job application had no prospects of success due to lack of experience) would be on safe ground to refuse that candidate a job. But what if employers face a litigious candidate who had some relevant experience and had asked for reasonable adjustments as a disabled employee? That candidate might say that they had brought each of those cases with the intention of pursuing them to a hearing to demonstrate institutional discrimination in their extensive job search. Can an employer safely refuse to hire a serial litigant in these circumstances? 

The answer is no: bringing proceedings (or giving evidence) is a protected act under the  Equality Act 2010, provided the act relates to a protected characteristic and has been done in good faith. Employers who simply rule out employees because of prior discrimination claims may be opening themselves up to a victimisation claim.   

The fact that the candidate’s motivation may have included extracting a financial settlement from other prospective employers in bringing the claim is of little relevance.  The key question is was the claim brought honestly? If so, to deprive a candidate of a fair interview or a job will likely amount to victimisation. Ultimately, it is not relevant if the candidate has it wrong and 38 prior job applications were unsuccessful because they have a terrible employment track record rather than because they have a disability. If employer number 39 refuses to give them a job because they have alleged disability discrimination countless times, that is very likely to be an actionable and successful victimisation claim against employer number 39. 

Burden of proof  

The key issue here is why was the candidate refused the job by employer 39 and can number 39 prove it? If it was because the candidate has zero relevant experience, things are looking less risky for the prospective employer; the question is can the prospective employer demonstrate that reason? The burden of proof quickly shifts to the prospective employer in these circumstances and contemporaneous notes will be absolutely vital. 

Ultimately, what this goes to show is that before employers unleash their managers on the recruitment process, they should make sure they have had appropriate training and, in particular, have had diversity and inclusion (D&I) training. Understanding how to avoid victimising job candidates who have previously been involved in cases or supported former colleagues in claims around protected characteristics is vital. As is knowing how to run a fair recruitment process, make reasonable adjustments where necessary, and document the fair and justifiable reason for not taking a candidate further forward in the process.   

Potential employers need to be able to robustly defend themselves from serial or vexatious litigants who have zero intention of using the tribunal process properly. But, in doing so, do not expose your organisation to candidates like this job applicant who clearly took the opportunity to exploit the system.  

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