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Adam Partington

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Ask the Expert: can you refuse to interview an unsatisfactory former worker?

Question:  Can you refuse to interview an unsatisfactory former worker? 
What is the legal position if a former employee who had a poor performance/attendance record but left of their own accord rather than having formal action taken against them, applies to work for your company again? 
I can’t seem to find any guidance relating to this, but are you obliged to consider them or can you discount their application?
Again, if you have an ex-employee who was dismissed for misconduct or gross misconduct and they apply to work for you again, are you within your rights to refuse to consider this application?
When advertising jobs or selecting a candidate for a role, it is important that an employer does not discriminate against job applicants. Subject to this, it is open to you to select which applicant you think is most suitable for a role and, as part of your recruitment process, you may decide that some applications are not worth progressing (e.g. to interview stage). 
On this basis, there should not be a problem with you deciding that you do not want to consider any further, applications from a former employee who had a poor performance/attendance record or a former employee who was dismissed for misconduct or gross misconduct. Nonetheless, you should be wary of unintended discrimination. For example, if the poor attendance was because of a disability, or morning sickness because of pregnancy, then you need to tread more carefully because discounting an application out of hand in such circumstances could open you up to discrimination claims. 
In any event, to try and avoid creating any unnecessary antagonism, if you have discounted the job application out of hand, it would be prudent to ensure that you do not voluntarily disclose this fact to the job applicant. 
Adam Partington, Solicitor, Speechly Bircham LLP

One Response

  1. Ordinary Employee
    1) you wld be discriminating against that person; unintentional discrimination, similar to that of the police officers in the Stephen Lawrence case some years back. 2) you’ll also be making what you already know about that person cloud ur judgment & 3) that individual could have changed or learnt some new skills in how to perform better in the work place.


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