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Employers Warned against Blacklisting Employment Discrimination Claimants

February 10, 2017

Employers and recruitment agencies are being warned against using the government´s new tribunal database to blacklist employment discrimination claimants.

Earlier this month, the Ministry of Justice launched a portal listing decisions in employment tribunal cases. The portal covers all areas of employment disputes in England, Wales and Scotland from age discrimination to maternity rights.

An unintended consequence of the portal is that employers and recruitment agencies can search the database of decisions to see if a prospective employee has previously made an employment discrimination claim.

Concerns have been raised by lawyers that employment discrimination claimants could be unfairly victimised and blacklisted, as the portal only gives the decisions in the claims and not the circumstances in which the claims were made.

The lawyers have warned that businesses who blacklist employment discrimination claimants could face employment tribunal cases against them if it is discovered that an employee has been refused a position because of a previous employment discrimination claim.

They refer to the court case brought against several leading construction companies who had blacklisted construction workers for their trade union connections or for raising health and safety concerns. The case was settled in May last year for more than £10 million.

Speaking with Recruiter magazine, Christopher Tutton – a London-based senior employment lawyer – warned employers and recruitment agencies to exercise caution if using the new portal to screen applicants and find out if they were previously employment discrimination claimants.

He said: “Recruiters need to be very careful about this as it could leave them exposed to claims of discrimination, victimisation or whistleblowing if they screen candidates for this reason.” Mr Tutton´s views were mirrored by commercial lawyer David Whincup, who added:

“If you find the individual you were thinking of recruiting has previously claimed discrimination, then a decision on that basis not to take their application further could run the risk of being unlawful victimisation.”