When bringing a claim of discrimination in relation to an advertisement for a job, the Employment Appeal Tribunal (EAT) has held in Ramos v Lady Coco Ltd t/a Shamala’s Fresh Hot and Cold Food that claimants must show that they have a genuine interest in applying for the post and are not making a complaint “solely with the intention of seeking financial gain”.
Basic facts
Mr Ramos (who lived in London) brought a claim for unlawful sex discrimination against a Chinese restaurant in Glasgow which had posted an advertisement for “female takeaway staff” on Gumtree. He claimed compensation for injury to feelings and loss of earnings on the basis that he could not apply for the post because of the discriminatory content of the advert.
The employer defended the claim on the basis that Mr Ramos had lodged a number of claims for jobs in similar circumstances, none of which he intended to apply for. In this case, he had not contacted the owner of the restaurant to enquire about the role nor taken any steps to seek information about the position. According to the owner of the business, Mr Ramos had made an application to the tribunal “solely with the intention of seeking financial gain”.
Tribunal decision
The tribunal rejected Mr Ramos’ contention that he was genuinely interested in the advertised role and had wished to move to Scotland because the cost of living was less. It found his evidence to be “wholly unconvincing” on the basis that if he had been genuinely interested in the role, he would have taken the requisite steps to pursue an application.
The tribunal also noted that Mr Ramos refused to answer the question when asked about other roles that had potentially discriminatory requirements for which he had applied on the basis that he might be victimised.
With regard to the relevant case law, the tribunal took account of a European decision which stated that “the purpose of the [legislation] is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill … those who try to exploit the [legislation] for financial gain in such circumstances are liable to find themselves facing a liability for costs.”
Dismissing his claim, the tribunal concluded that Mr Ramos was motivated solely by financial gain; that he had no desire to fill the vacancy in question; and had not been subjected to less favourable treatment. It, therefore, issued a Preparation Time Order (PTO) requiring Mr Ramos to pay the restaurant just under £700 for the time it had taken to prepare for the case when not legally represented.
Mr Ramos appealed, arguing (among other things) that the tribunal should not have allowed the restaurant owner to conduct the case from China and that it should not have made a PTO against him.
EAT decision
Dismissing the appeal, the EAT held that it was “totally without merit” as none of the grounds identified an arguable question of law. This was despite the fact that Mr Ramos as a “serial appellant” was only too well aware that appeals can only be pursued on a point of law.
The EAT judge was also highly critical of his conduct at both the tribunal and EAT proceedings which she described as “abusive” and “vexatious”. She, therefore, decided to refer her ruling to the registrar to consider whether there might be grounds for it to be considered by the Lord Advocate.
Comment
Whilst this is an extreme example of a vexatious claimant, employers should remember that there are individuals who genuinely want to apply for a job but are rejected on grounds of their protected characteristic. It is very difficult for claimants like these to prove this form of discrimination, however, as it is always very subtle.
