Last week (9 February) the Employment Tribunal announced that its decisions would be freely available online, allowing searches by name of employer or perhaps prospective employee. You know you want to give your candidate a quick once-over if you can (employers never being strong believers in the view that what you don’t know can’t hurt you), but is it wise? The internet is full of lawyer cautions against relying on what you find in a review of a candidate’s social media presence, but is that true of a search of the Tribunal records also?
Employers are free to employ who they want for the reasons they want, within reason, but they cannot usually refuse to hire someone based solely on gender, sexual orientation, religious belief or any other protected characteristic under the Equality Act 2010. To do so could clearly give rise to a discrimination claim. In addition, however, the employer must be careful to avoid victimisation under s27 of that Act, i.e. treating a person detrimentally (e.g. by not hiring them) because they have claimed (or it is thought that they may claim) some form of discrimination.
Just like asking for too much information on an application form, once the employer is fixed with knowledge of a discrimination claim against a former employer, it will be under a significant burden to show that the real reason for rejecting the candidate was something else. After all, if you did not think that his Tribunal history could be relevant to this application, why were you looking? So is there anything you could find by a search of the Tribunal records which you would be entitled to rely on in the recruitment process?
- Similarly, if the Tribunal decision showed that some representation the candidate had made to you was false (e.g. that he had been dismissed, not resigned, or that he had earned much less than he claimed or that his dates of employment were very different from his CV), then the reason for rejecting him would be the misrepresentation, not the underlying Tribunal claim.
- Even if a discrimination claim against a former employer were found, it must be arguable that the would-be employer could reject a candidate who had been found by the Tribunal to have been actively dishonest in his evidence or to have brought the claim maliciously or vexatiously;
- The victimisation regime covers discrimination only, not ordinary unfair dismissal or other prior claims, so you could act on that if you so choose;
- The same would probably be true if the decision showed that the candidate had unacceptable external interests or was a serial drug-user or had criminal convictions he should have disclosed to you but did not.
Lessons for employers
- The Data Protection Act Guidance says that where you are proposing to reject someone on the basis of data obtained from a vetting process, you should allow them to have their say in response first; and
- Remember that what the record will show is the final decision, not the evidence, and therefore that a finding that X is the case does not mean that the candidate agrees;
- If you are going to search the Tribunal record, do it for all your candidates, not just those you suspect might be more likely to have claimed before or to claim in future;
- If you do reject a candidate for whom you have found an earlier discrimination claim, be sure that you have (and can evidence) an objective alternative reason for doing so.
Another thought for consideration is the minimal likelihood of actually finding your candidate on the Employment Tribunal directory anyway. Since the introduction of Tribunal fees in 2013, there has been between a 50-60% reduction in applications to 83,031 in 2015-2016 (of which just over 25,000 were for discrimination) and of those only 13% reached a hearing (and therefore a judgment). This does not account for the cases which are dealt with by way of Early Conciliation or indeed threatened proceedings which are never issued and so it is questionable how useful this directory will be in finding these “tricky” candidates who may threaten litigation but never see it through.
Overall, employers are free to search the directory but they should be careful about what they uncover and whether what they find will have any effect on their decision-making during the recruitment process. If yes, it’s best to avoid unless an employer can show there was another reason for the rejection of the candidate.
A final point should be that anyone can view the decisions so an employer must remember it goes both ways and be prepared with an answer when asking a candidate “Do you have any questions for us?”.