Published: EADT

Date: 22 March 2011

Author: Kate Dodsworth, Solicitor, Employment

Employers and recruiters should note a recent trend in employment litigation, meaning that it has never been more important to ensure that job advertisements cannot be construed as discriminatory on the grounds of age.

In Keane v Investigo and others Mrs Keane was an accountant in her 50s with over 20 years’ experience. Over a short period of time, she responded to more than 20 job adverts seemingly aimed at recently qualified accountants or applicants with little experience. In each case, as soon as she realised she was not going to be offered an interview (and sometimes even earlier), she would commence Employment Tribunal proceedings pleading that she was being discriminated against because of her age.

In Berry v Recruitment Revolution and others Mr Berry was in his 50s and brought numerous claims complaining about job adverts that could be read as targeting young people. For example, Mr Berry suggested that to describe a job as a “junior role” suitable for “recent graduates” was discriminatory on the grounds of age and placed him at a disadvantage in applying for that job. Mr Berry did not apply for the jobs in question.

Both claimants were contacted by the employment agencies they complained to, who advised them that they would be considered for the roles and encouraged their interest. Neither claimant acted on this encouragement.

The Employment Appeal Tribunal (“EAT”) held that neither claimant had a genuine interest in any of the roles. Therefore, neither Mrs Keane nor Mr Berry had suffered any detriment or disadvantage due to their age.

In Keane, the EAT held that Mrs Keane’s motivation was to make money and the costs award against her was upheld. She had issued the claims in the hope of either recovering compensation or reaching a settlement with the respondents. In Berry, the EAT was careful not to express too fine a view on Mr Berry’s motivation as he was not present, but noted that he had made around 50 similar claims, had taken none of the jobs advertised and had settled with several respondents. The EAT stated that the purpose of the law was not to “provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies they have in fact no intention to fill” and went on to warn that claimants who attempt to exploit the system may face a liability for costs.

Whilst the Tribunals may be ‘wise’ to this type of practice, employers and recruitment agencies should take specific advice to make sure that they do not place any adverts that could appear to be discriminatory. If not, you could be faced with a claim, however fanciful or unmeritorious that may be!

For more information please contact Kate Dodsworth