Ben Doherty issues a warning to charities following recent instances of a serialapplicant which highlight the perils of staff recruitment and discrimination claims

The phrase serial applicant sounds harmless enough - after all, we regularly hear stories of graduates making hundreds of applications before they find a job.

But while it sounds harmless, it may not be: serial applicants could well land you in an employment tribunal.

It’s therefore important for charities of all sizes to understand what serial applicants are, and how to manage the risks of discrimination claims by them.

What is a serial applicant?

Serial applicants are people who are more interested in making a claim against a prospective employer than in finding a job.

If requests for reasonable adjustments are not met, applicants may be able to make a discrimination claim against the potential employer. Hence, the risk from serial applicants

Ben Doherty

When their application is rejected, they seek to make a claim to an employment tribunal unless an employer is prepared to settle the matter.

The allegations usually involve breaches of equality legislation on grounds such as age, race or disability.

The law

According to the Equality Act 2010, it is unlawful to discriminate against people on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

To avoid discriminating against anyone in their hiring processes, employers must be ready to make reasonable adjustments to their recruitment arrangements. For example, a disabled person may require assistance with accessing the interview location, or additional time to complete a selection test.

If requests for reasonable adjustments are not met, applicants may be able to make a discrimination claim against the potential employer. Hence, the risk from serial applicants.

The dilemma

In a recent example, a charity in Scotland advertised a vacancy asking applicants to complete an online application form.

One applicant emailed, referring to his disability and making a list of adjustments to the recruitment process. His requests included: accepting his email and attachments to it as a job application as he was unable to complete the online form; the assistance of a skilled equality adviser at every stage of the recruitment process; and interview arrangements such as overnight rest in a hotel, and provision of a paid carer, taxis and meals.

The charity has had to decide whether to meet the requests. It was concerned that if he was not offered an interview, he would claim it was because of his disabilities and therefore discriminatory. The charity therefore considered the detail in the email and its attachments and reached the conclusion that the applicant did not meet the minimum criteria for the vacancies applied for. It therefore did not invite the applicant to interview.

Employers are not defenceless

If you do suspect you are up against a serial applicant, you do have some remedies.

First, consider reviewing tribunal records to identify whether they have brought previous multiple claims. Bear in mind that a tribunal will not uphold a discrimination claim if an applicant had no intention of applying for or taking the job. This position was confirmed in the recent decision of the European Court of Justice (ECJ) regarding a German applicant. The ECJ held that a person who applies for a position in order to claim discrimination cannot be considered as a “victim” under the EU law and their actions may, in fact, constitute “an abuse” of rights.

However, you should tread softly here: it may be actionable victimisation to reject a suitable candidate just because they have previously made a claim of discrimination.

In all cases, however, prevention is better than cure. You should tailor your recruitment process to reduce the risks of discrimination claims from serial applicants:

Ensure minimum job requirements and job adverts do not contain discriminatory content – such as people being ‘young and active’.

Refer to a well drafted equality policy when setting out job and person specifications.

Ensure those involved in the selection or interview process have received training in equality.

Leave health-based questions – except those designed to identify reasonable adjustments required for the recruitment process – until after shortlisting or an offer is made.
Keep full records of all steps taken and the reasons for them in case of a claim.

If you do receive an application which doesn’t appear genuine – for example because it is a long list of requests for reasonable adjustment, don’t ignore it - take early advice.

Ben Doherty is head of employment at law firm Lindsays.