Maxine Orr of Worthingtons Solicitors discusses a case in which it emerged the Claimant had issued proceedings in various Tribunals across England against 60 different Employers
The Age Regulations came into force in 2006 making it unlawful for an employer to discriminate on the grounds of age. This includes in relation to the arrangements made for determining who should be offered employment.
Mr John Berry was a man in his mid-fifties and he issued Tribunal proceedings in various tribunals across England against approximately sixty different businesses and recruitment agencies complaining that the terms of various job advertisements were in breach of the Age Regulations. His claims related to the use of terminology such as “would suit recent graduate” or “school leaver” arguing that this was to target younger applicants to the positions.
Mr Berry’s claims at the Tribunal were either dismissed or struck out and his requests for a reference to the European Court of Justice refused on the basis that they had no prospects of success because among other things, he had not actually applied for any of the jobs advertised (and therefore had not been disadvantaged). Furthermore the Tribunal stated that the content of a job advertisement does not constitute part of the “arrangements” made by the employer for determining who should be offered employment. Mr Berry appealed to the Employment Appeals Tribunal and argued among other things that the European Court of Justice’s decision in Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV 2008 ICR 1390 supported his claim. In that case the European Court of Justice held that a Belgian employer who publicly stated that he would not recruit Moroccans because it would damage his business had committed an act of direct act of discrimination contrary to the EU Race Directive since his statement would “strongly dissuade” certain candidates from applying for work.
The Employment Appeals Tribunal dismissed Mr Berry’s appeal noting that in the Centrum decision from the European Court of Justice it was stated that an individual was not entitled to compensation if he or she had no interest in the job in question. The Employment Appeals Tribunal noted that Mr Berry had apparently contacted numerous employers about alleged age discriminatory job advertisements, reaching out of court settlements with some of them. While not expressing a view on Mr Berry’s motivation, the Employment Appeals Tribunal emphasised that the 2006 Age Regulations “were not intended to provide a source of income to people who complain about discriminatory job advertisements but who have no desire to fill the vacancies in question”. It added that “those who tried to exploit the Regulations for financial gain were liable to have costs awarded against them”.
This will be a relief for employers however given the changing nature of employment and case law in this area, employers should always take professional legal advice in relation to the recruitment procedures.
Maxine Orr is a Partner, specialising in employment law, in Worthingtons Solicitors, Belfast.