A claim for discrimination can be made in respect of the way in which a job has been advertised without the claimant actually applying for the job. The claim will be based on the advert deterring the applicant on grounds that amount to unlawful discrimination. However in Garcia v The Leadership Factor Ltd the alleged grounds for such a claim were considered to have so little prospect of success that a deposit had been ordered as a condition of the claim continuing.
Mr Garcia, who has a stammer, brought proceedings that an advertisement for someone to carry out customer satisfaction research by telephone was discriminatory. The advert had required candidates be “polite with a clear voice” and confirm that they were in “good health”. Mr Garcia alleged that these conditions had deterred him from applying and he sought compensation for injury to feelings and for financial losses caused by him being unable to work because of the discriminatory requirements.
It was held that Mr Garcia’s claim had little reasonable prospect of success and a deposit order was appropriate. In relation to direct discrimination non-disabled candidates with comparable abilities may have been equally put off from applying. In relation to indirect discrimination, it was self-evident that a justification defence would be likely to succeed given the nature of the role. Additionally, he was not able to show that he was even genuinely interested in applying for the role.
The decision is a reminder of the relevant factors that will be taken into account when assessing whether a claim has little reasonable prospect of success. This will include the likelihood of factual issues being established at the full hearing and an assessment of the justification defence where it is self-evident given the nature of the role. Whether the claimant is genuinely interested in the position is a relevant factor too to avoid abuse of the Tribunal jurisdiction by those just looking for compensation payments.