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HR dilemma: ‘new recruit’s legal case fills us with dread’

Article from the Financial Times – published on 15 May 2013

We recently recruited a senior member of staff who entirely outshone all other candidates during the interviews. To my dread, however, I have just discovered that she is in the middle of a discrimination case against her former employer.

This could turn into a high-profile event that we do not wish to be associated with. In addition, it is hard to shake the feeling that she might be prone to making a big deal out of nothing and launching into litigation – something we simply cannot afford. Can we dismiss her on the grounds of omitting to tell us about the legal action?

Paul McGowan, principal solicitor at Collingwood Legal, says:

I am sure many employers can identify with your feeling of dread. However, dismissing this employee now will expose your business to a significant risk of a high-profile and, potentially, very damaging claim.

You might be able to argue that she misrepresented herself by not revealing details of the legal action during the interview stages, or on her application form. If you had asked her specifically why she left her previous employer, you would be right in feeling that she deliberately misled you. As such, you could dismiss her for misrepresenting matters to get a job rather than anything to do with the claim.

However, this is a risky strategy and not one that I would recommend. The Equality Act provides solid protection for employees who have previously brought a discrimination claim. Future employers must not treat them any less favourably because of this fact.

In the eyes of the law, it makes no difference that the original claim was brought against someone else, as long as it was brought in good faith. It means that your company, as her new employer, could be held liable for victimisation if you went ahead and dismissed her on those grounds. In fact, she could even direct a claim at you personally as an individual.

In short: do not treat this employee any differently despite the fact that this revelation might make you inclined to do so – whether it is dismissing her or simply giving her all the boring jobs to do. Any negative action might be used against you and lead to a successful claim.

Bearing in mind that this employee outshone all other candidates during interview, and might turn out to be the asset you hoped for, I would simply sit tight and try to forget about her historic claim.

Article written by Paul McGowan, Principal Solicitor.

For further advice or information please contact Paul at paul.mcgowan@collingwoodlegal.com or by telephone on 0191 282 2882.

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