We’ve just received a race discrimination questionnaire, and threat of a claim from a job applicant whom we did not shortlist.  She claims she submitted two identical claims – one from a Siobhan Lewis and another from a LaShawna Ahmed.  We shortlisted and interviewed Siobhan Lewis, but not LaShawna Ahmed.  She’s correct that other than the name, the rest of the application forms were exactly the same.  I’m not sure how we can justify shortlisting one, and not the other.  Can you help?

Wretched about race.

 

Dear Wretched

Sadly, serial claimants who submit numerous job application forms which are identical other than for one important personal detail (e.g. name, sex), are more common place than many realise.  These individuals wait and see which applications are shortlisted.  Depending on which application is taken forward, they bring an Employment Tribunal claim for, for example, race or sex discrimination (or potentially discrimination on the grounds of religious belief).  You may consider that Tribunals would not have much sympathy for Claimants who have used these methods, but according to recent case-law Tribunals consider that the greater evil is discrimination in the workplace.  Therefore a Tribunal may well make an award to a multi-applicant if it considers that discrimination has indeed occurred.  As discrimination awards are uncapped (based on the actual losses incurred) the awards claimed can potentially be high, especially if the individual takes a while to secure a job.

Recent press comment has highlighted that, of course, names reveal ethnic origins, and potentially religious belief.  The Swedish newspapers published a survey in June showing that the children of immigrants with obviously “foreign” names who were, in every other respect, entirely Swedish, could boost their income significantly by changing their names to names that sounded Swedish.  Interestingly, the effect of an individual’s name on his/her career prospects was less with higher earners.  The lowest paid could however expect to double their income by changing their names.

So what should employers do?

  • Reinforce your message to all your employees that you are an equal opportunities employer which does not tolerate discrimination on any of the prohibited grounds;
  • Ensure you are not guilty of discrimination by treating applications from individuals with obviously “foreign” sounding names less favourably than job applications from obviously “English” sounding names;
  • Train your managers about the risks of serial claimants and the importance of not focusing on the sex or race (as evidenced by their name) of job applicants;
  • When reviewing job applications, so far as possible, look at them all at the same time and maintain a consistent group of reviewers/interviewers so that claims from serial claimants are more easily identified;
  • Have another member of staff review the shortlist process to check that discrimination has not occurred.

Where, as in your case, applications which are identical except for one personal detail are treated differently, it is going to be an uphill struggle and almost impossible for an employer to justify such difference.  The burden will be on the employer to show that discrimination did not occur, and proving a negative is notoriously difficult.  Therefore, in this instance, prevention is certainly better than cure.

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