Be careful what you ask job applicants

The recent case of Bouabdillah v Commerzbank has called into question what information it is legitimate for employers to request both during and after the recruitment process.  It has also focussed the spotlight on candidates’ obligations of disclosure during a job application process and the extent to which employees are entitled to keep personal matters private.
The tribunal ruling, which was handed down last month, found in favour of Ms Bouabdillah, who successfully claimed that she had been victimised by Commerzbank when she was dismissed for having brought a sex discrimination and equal pay claim against her previous employer, Deutsche Bank.
In the judgment, the tribunal held that Commerzbank had acted unlawfully by dismissing Ms Bouabdillah when it found out about her Deutsche Bank claim.  The tribunal found that, contrary to Commerzbank’s assertions of a breakdown of trust:
•    Ms Bouabdillah had been under no obligation to disclose the Deutsche Bank litigation to Commerzbank, as it was a private matter that should have had no impact on her employment with Commerzbank.
•    Ms Bouabdillah had not misled Commerzbank at any stage during the application process.  Although Ms Bouabdillah’s answers to questions during interview about her reasons for leaving Deutsche Bank were not “entirely full”, they had not been dishonest.
•    Ms Bouadillah had not responded dishonestly to a question in the Commerzbank application form which related to legal action, as it was clear that the question related solely to whether she was a fit and proper person to hold a FSA compliant role.
•    The fact that Ms Bouabdillah had brought the Deutsche Bank claim had not exposed Commerzbank to reputational damage, as Commerzbank was only referred to in passing in the press reports about her claim.
The tribunal concluded that Commerbank had shown a “knee jerk” reaction by dismissing Ms Bouabdillah when it found out about her claim against Deutsche Bank.  It said Commerzbank’s response had been “emotionally driven”, rather than appropriately analytical, and was as a result of Ms Bouabdillah having brought discrimination proceedings rather than the failure to disclose them.
Take home messages
So, what practical messages can employers take from this judgment?
Above all, employers should remember that an employee has a legitimate right to enforce his or her rights against a previous employer.  Taking detrimental action because an individual has brought discrimination proceedings against a former employer is unlawful victimisation.  Employers should therefore ensure a measured approach is taken to any information which comes to light.  They should consider carefully whether the individual has been dishonest and whether the information has genuinely caused a breakdown in trust and/or is relevant to the individual’s ability to do their job.
Equally, interviewers should bear in mind that the law does not require job applicants to volunteer information regarding issues on which they are not questioned.  Probing deeper with questions may help to elicit further information from a candidate and encourage voluntary disclosure (although “probing” questions must not be discriminatory and should relate to the specific role).  Needless to say, questions relating to childcare arrangements, sexual orientation, marital status, religion or age, for example, should be avoided.
As the Bouabdillah v Commerzbank has shown, adopting an immediate “emotionally driven” response to any revelations about an employee can prove exceptionally damaging and expose an employer to significant legal, financial and reputational risks.

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