Tribunal tribulations

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You couldn’t make this one up. A spectacularly unsuccessful contestant in Britain’s Got Talent, Emma Amelia Pearl Czikai, has lodged an Employment Tribunal case against the ITV programme makers, claiming disability discrimination. Her argument seems to be that, as a result of cervical spine neuritis, she gets head and shoulder pain which affects her ability to hear properly in amplified arenas and causes her to sing out of key. Thus the derisive comments made about her singing by Simon Cowell were unfair and discriminatory.

Although many people may not be displeased to see Mr Cowell himself on the spot for a change, this case (which may or not be accepted, of course) is significant – not for its own sake, but for what it tells us about the seemingly endless expansion of the scope of employment law.

Readers may not be fully aware that you don’t have to be employed to be covered by employment law on discrimination. Any unfairness in recruitment processes can make an employer liable. In this case Ms Czikai seems to be arguing that the BGT auditions are part of an elaborate recruitment process for a contract of employment – to wit, a recording contract. It is a well-established principle that an employer who doesn’t make reasonable adjustments for a candidate’s disability, and makes disparaging remarks about him or her in the “interview” process will be liable for unlimited compensation. On these lines, it is quite possible Ms Czikai will succeed in her claim.

The possibility of large amounts of compensation, coupled with the fact that legal cost orders are very, very rarely imposed on unsuccessful claimants, must surely be a factor in the ever-wider expansion of the scope of discrimination claims (see previous post on climate-change belief). Last year disability discrimination claims rose by 19%.

Fear of tribunal claims is in turn a major cause of the expansion of the personnel/HR function in larger businesses and the public sector (where a disproportionate number of claimants, unlike Ms Czikai, are to be found). The Chartered Institute of Personnel and Development now has 135,000 members busily trying to anticipate problems and creating hugely complicated “best practice” procedures : twenty years ago it had just 40,000. In smaller companies and charities, where a specialist HR function is unknown, a wrong call can lead to an organisation being put at peril.

There is no logical end point here. When does the lack of an ability become a disability? I used to play tennis a lot. I guess the tournaments I entered were part of an ellaborate recruitment process that could lead to me becoming (at least) a local club tennis professional. But I was not very good so I always got knocked out of the bigger tournaments. Is this employment discrimination as a result of my hand-eye coordination (not to mention physical strength) not being as strong as Bjorn Borg’s? I don’t want to make light of people who struggle with real disabilities, but the law is in danger of trivialising their situation.

I am involved with a body which provides vocational employment qualifications. We recently increased the fee payable on making an appeal from £25 to £50. Subsequently the number of appeals went down dramatically. (I don’t say ‘as a result’, but it wouldn’t surprise me if there were a causal connection.)Allowing people to appeal without having to bear any costs if their appeal fails, or is found to be without merit, is asking for a fair number of ‘frivolous’ appeals, as those involved see themselves as participating in a one-way bet where they could win and cannot lose.I think it makes sense to allow room for a fair bit of sheer ‘bad luck’ to exist in life, with no compensation.

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