There has been a noticeable increase in recent years in the number of vexatious litigants who attempt to lure potential employers into the discrimination trap. The aim of these types of litigant is to extort money out of businesses that decline to offer them employment. It is usually more commercial and cost effective to settle at an early stage, however unattractive, as opposed to racking up legal costs to defend an employment tribunal claim.
One common ruse involves a job applicant issuing two CV’s; one listing a ‘protected characteristic’ (their sex, race, age, disability, religion or sexual orientation), the other sets out the same skills and experience but without mentioning or indicating the protected characteristic.
Employers can then fall into the trap of inviting the job applicant who is perceived by the employer as not having the protected characteristic for an interview, whilst not inviting that same job applicant for interview who has not indicated his or her protected characteristic.
A case in point was a recent Employment Tribunal claim against Virgin Atlantic Airways where a refugee from Liberia issued two job applications for employment in the Virgin call center. He issued one CV using his birth name of Max Kpakio. This application was rejected. He then submitted another very similar CV under the false name of Craig Owen. ‘Mr Owen’ was offered an interview. Consequently Mr Kpakio issued proceedings in the Cardiff Employment Tribunal seeking compensation and injury to feeling from Virgin Atlantic Airways.
The Employment Tribunal dismissed the claim on the basis that it believed Virgin Atlantic’s assertion that it had applied its equal opportunities policy and that the reason for not inviting Mr Kpakio for an interview was on the basis that various skills were omitted from the CV showing his birth name.
The Employment Tribunal Judge found that ‘they were different applications and the false application was clearly designed to meet the Respondent’s criteria for the role’. Although Virgin Atlantic won the case, they still incurred costs and management time in having to robustly defend their position.
This in mind, all employers should ensure that they follow their internal equal opportunities policies when considering job applications. They should also be consistent and show fair treatment in determining who they wish to invite for interview based on skills and experience. We advise that they keep high quality notes of the reasons for accepting and rejecting job applications to strengthen their position in defending any potential vexatious claims of this nature.