Take care to avoid claims

KATE DODSWORTH, an employment solicitor at Ashton Graham, warns employers of a rise in speculative claims of age discrimination

EMPLOYERS and recruiters should note a recent trend in employment litigation which shows the importance of ensuring 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 more than 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, he suggested that to describe a job as a “junior role” suitable for “recent graduates” was discriminatory on grounds of age and placed him at a disadvantage in applying for that job. He 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 had suffered any detriment or disadvantage due to their age.

The EAT held that Mrs Keane’s motivation was to make money and a costs award against her was upheld. She had issued the claims in the hope of either recovering compensation or reaching a settlement.

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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 said 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 that claimants attempting to exploit the system may face liability for costs.

However, while 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!

This article is for general information purposes only and does not constitute legal or other professional advice. You should not act or rely upon this information.