Berry v Recruitment Revolution and ors is authority for the fact that claimants who bring discrimination claims in respect of alleged discriminatory job advertisements in which they have no genuine interest, purely in the hope of being paid to settle their claims, are liable to face an order for costs.
In this case, Berry claimed that the terms of several job advertisements, for which he did not actually apply, breached the Employment Equality (Age) Regulations 2006. Four of Berry’s claims were struck out, and his requests for a reference to the European Court of Justice were refused. The tribunal struck out his claims on the basis that he had not actually applied for the job. Further, applying the Employment Appeal Tribunal’s decision in Cardiff Women’s Aid v Hartup that claims relating to discriminatory advertisements could only be brought by the Commission for Racial Equality under Part IV of the Race Relations Act 1976, Berry had no remedy. Berry appealed arguing, among other things, that the European Court of Justice’s decision in the foreign case Centrum voor Gelijkheid van Kansen voor Racismebestrijding v Firma Feryn NV compelled the tribunal to grant him some remedy.
The Employment Appeal Tribunal dismissed the appeals noting that it had already held in Keane v Investigo that Centrum does not entitle someone who has not applied for a job which is advertised in discriminatory terms to claim compensation. The Employment Appeal Tribunal did doubt whether the reasoning in Cardiff Women’s Aid is correct in so far as it suggested discriminatory advertisements could not be covered by Regulation 7(1)(a) of the Regulations, however, an employer will only be liable under Regulation 7(1)(a) if the claimant was actually discriminated because of their age. Berry had not suffered any detriment as he had declined to apply for the job when the wording of the advertisement was rectified. Further, as the Respondent was a recruitment agency and not an employer, it did not fall within the terms of Regulation 7 at all. An employment agency might be liable under Regulation 26, which renders liable third parties who knowingly aid another to do an unlawful act; but that would require evidence that the wording of the advertisement was the responsibility of the employer as opposed to an error on the part of the agency.
Head of our Employment Team, Kate Fretten, says “This is good news for employers, as the Employment Appeal Tribunal concluded by emphasising that the Regulations are not intended to provide a source of income for those who complain of alleged discriminatory advertisements for job vacancies which they have no intention to fill, and that those who try to exploit the Regulations for financial gain are liable to a costs award, as happened to the claimant in Investigo. However, the best approach is to get your advertising and recruitment process right to avoid any potential claims! Contact us if you have any questions about this.”
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