If your business regularly advertises for staff or deals with recruitment agencies undertaking this role, you could find yourself at the mercy of “serial litigants” who make spurious opportunistic claims under employment law.  Historically, many small to medium enterprises have simply conceded and paid up in order to reduce costs and business time, but a recent case may change employers’ tactics so that the boot may now be on the other foot.

Employment specialist, Andrew Fishleigh, explains how a recent case could change employers’ tactics so that the boot may now be on the other foot.

Mrs Keane, who was a 51 year old accountant with several years’ experience, applied for at least 20 positions where the advertisement was for a recently qualified accountant with limited experience.

While the advertisements may have fallen foul of age discrimination legislation, Mrs Keane was not interviewed and commenced Tribunal proceedings claiming age discrimination by 11 agencies. Six of her claims were settled and five went to the Employment Tribunal.

The Employment Tribunal and the Employment Appeal Tribunal (in December 2009) both denied her claims because she had not shown that she had genuine interest in the jobs.  This was crucial, since if she was not actually interested in the job then she had failed to show that she suffered a detriment – which is a hurdle all claimants usually need to jump when claiming discrimination.

It is now possible to search a Register of Decisions or Judgments to ascertain the identity of the claimant who is your opponent. One such individual has a total of 35 recorded decisions with no judgments in his favour and having numerous costs orders made against him.  However his tactics appear to have proved worthwhile, because he managed to extract settlements from many other companies where claims did not go to a full hearing.

If your company faces a claim following a job advertisement look at the following points carefully:

• Consider a search of the claimant’s history – a schedule showing previous claims is very useful and will demonstrate a history of pursuing claims.
• Is it possible to offer the applicant opportunities or give them some assistance in order to weed out the gold diggers who are not genuinely interested in applying?
• Consider asking for a CV in order to see their qualifications for the role and also consider asking for proof of identity.

Lastly, if a genuine application is not clear armed with the above, you could apply to strike out the claim. This is not likely to be expensive in relation to what you may have to pay if you settle wrongly!

Author Andrew Fishleigh is a solicitor in Keystone Law's Employment, Pensions and Incentives Team specialising in contentious and non contentous matters.  To find out more, refer to www.keystonelaw.co.uk, call 020 7152 6550 or email enquiries@keystonelaw.co.uk  Please note this article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article [September 2010]