Licence to sue?

Many organisations receive applications from individuals looking for employment. Sometimes these are unsolicited, speculative applications. How should organisations deal with them? How can the risk of employment discrimination claims be minimised? In a recent case the Employment Appeal Tribunal (EAT) gave guidance on how, and when, the legislation applies to unsolicited applications.

This is of particular relevance for arts organisations – not just in respect of speculative artist proposals and CVs but also as a reminder of the need for care in auditions, interviews and other steps before engaging a person in any capacity.

The case in question involved a claimant who described himself as a performance artist. He wrote to an art gallery, suggesting that it might like to host a performance around the reconstruction of a burial tomb, which was to be built out of sugar cubes. The gallery politely declined. The claimant then brought claims in the employment tribunal, alleging that the gallery’s refusal of his suggestion amounted to unlawful religious discrimination. The principles apply to the other types of discrimination legislation too.

When what is applied for is not employment

In order to enjoy protection (and therefore have the right to bring a claim) the claimant had to show that he was either an employee, or that he was an applicant for employment. The legal definition of ‘employment’ used for the purposes of discrimination legislation is rather wider than that used for other employment purposes, such as for unfair dismissal purposes. The discrimination definition includes employees, and those working under ‘a contract personally to execute any work or labour’ – provided the dominant purpose of the contract was to secure the services of the particular individual. This applies to plays and scripts submitted on spec as well as auditions, even if the resulting acting engagement is a self-employed person.

However, even using this wide definition, the Tribunal concluded that whatever the claimant’s letter of application of the gallery did amount to, it did not amount to an application for employment. The discrimination claims were therefore struck out at a preliminary stage because the claimant had no legal entitlement to bring them. The EAT agreed.

Good news for employers?

What this means for organisations receiving speculative applications is that if those applications merely put forward ideas or suggestions, but do not go far enough to match up to this definition of ‘employment’, then the discrimination legislation will not be engaged and, therefore, there should be no risk of a successful claim if the idea is rejected.

This is potentially very good news for employers – particularly those who receive significant numbers of such applications. The EAT’s judgment means that if a decision is made to reject the application at a time when the employer has no actual work to offer, the applicant would have no right to bring discrimination claims, because the legislation would not be engaged. The situation would, presumably be different if, for instance, a theatre sends a holding response to a play, rather than a rejection.

Recruitment procedures

Organisations may wish to review how they deal with speculative applications, at least where those applications are applications for employment. Weeding out obviously unsuitable applicants by dealing with their applications as they arrive – especially if that coincides with a time when the organisation has no actual employment to offer – should go some way to minimising the risk of claims from disgruntled applicants. According to the recent judgment, claims brought in these circumstances should be struck out on the basis that there is no jurisdiction to hear them.

Where a large number of unsolicited applications are received, it can be very tempting not to bother acknowledging them. However, communicating a rejection to a speculative applicant does at least fix the date of the rejection, meaning that time starts to run out on a claimant’s eligibility to bring a claim about it. Applicants for employment (as compared to actual employees) have a much shorter time-frame in which to submit a claim to the employment tribunal: they must bring it within three months of the act they are complaining about, unless they can satisfy a tribunal it is ‘just and equitable’ to allow them to do so outside the time limit. Communicating a decision at the time it is taken is also likely to increase the chance that those who took it will be still within the organisation (and have a clear memory) for the purposes of giving evidence at any subsequent hearing. Conversely, not communicating a decision may have the effect of preserving the claim for longer.

Where organisations do have actual employment to offer, they should think very carefully about their recruitment ‘arrangements’, and consider whether these could potentially amount to unlawful discrimination. For example, does the job advertisement, audition announcement or supporting information make clear there is no point in certain categories of people applying?

Where claims are brought for which there is legal jurisdiction, the best defence usually lies in having clear evidence of a non-discriminatory reason for rejecting an application, particularly as the employer faces a reversed burden of proof in discrimination claims. Ideally, there will be a clear, contemporaneous written record of the non-discriminatory reason for rejection.