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The U.K. Employment Tribunal announced on Feb. 9 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 victimization 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 that you would be entitled to rely on in the recruitment process?
Lessons for Employers
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 to 60 percent reduction in applications to 83,031 in 2015-2016 (of which just over 25,000 were for discrimination) and of those only 13 percent reached a hearing (and therefore a judgment). This does not account for the cases that are dealt with by way of early conciliation or indeed threatened proceedings that 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?"
© 2017 Squire Patton Boggs. All rights reserved. Reposted with permission of Lexology.
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