Those seeking to profit out of the discrimination legislation will face liability for costs

Berry v. Recruitment Revolution [2010] UKEAT 0190_10_0610

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• Claimants may only claim regarding age discriminatory adverts if personally affected
• Cardiff Women’s Aid v Hartup doubted
• Investigo v Keane followed

The EAT in a preliminary hearing whereby a claimant had submitted many employment tribunal applications claiming age discrimination ruled in line with Investigo v Keane whereby those who respond to job advertisements in order to bring age discrimination claims will be liable to face paying costs.

A serial litigant Mr Berry had submitted multiple employment tribunal claims (Berry v Recruitment Revolution and Power Placements,Berry v Wells Tobias Recruitment, Berry v Ruston Hemmings and Carson Kay Recruitment, Berry v PTS Consulting UK Limited ) regarding various advertisements that seemed aimed at young people. Berry claimed that the advertisements were discriminatory under the provisions of the Employment Equality (Age) Regulations 2006 Regulation 7 (1), it being unlawful for an employer to discriminate against a person within the meaning of regulation 3 (a) in the arrangements he makes for the purpose of determining to whom he should offer employment or (c) by refusing to offer, or deliberately not offering, him employment.

The claims were dismissed by the employment tribunals and an application to refer one case to the European Court of Justice was refused by the ET.

Mr Berry had contacted Recruitment Revolution agency after it place an advert for a school leaver and objected that this was discriminatory, his being over 50 years of age. The agency replied immediately saying the job offer had been 'mis-typed' and that Berry would be considered for the job if he sent in his CV. Berry replied by way of his ET1. In the ET1 Berry complained of the ad but not that he had been deterred by it from applying for the job.

The complaint based on regulation 7 of the 2006 Regulations was rejected by the ET, basing its decision on Cardiff Women’s Aid v Hartup [1994] IRLR 390 where a complaint of discrimination (under section 4 (1) (a) of the Race Relations Act 1976) over an advert specifiying a black or asian worker was rejected as discriminatory advertisements were caught by Part IV of the 1976 Act under which claims were actionable solely by the Commission for Racial Equality. Judge Underhill President of the EAT has questioned the validity of this reasoning.

The EAT (para 15) rejected Centrum voor Gelijkheid van Kansen voor Racismebestrijding v Firma Feryn NV case as compelling the granting of a remedy. Keane v Investigo UKEAT/389/09/SM,a similar case to this one but where the claimant had actually applied for the unwanted job (paragraphs 20 and 21) was instead referred to in that there is no right to claim compensation in respect of a discriminatory advert unless the claimant has actually applied for the job (unaffected by the ECJ decision in Kucukdeveci v Swedex GmbH & Co KG (C-555/07).

The Claimant's argument that a discriminatory job advertisement is actionable under Reg 7 (1) (a) found sympathy with the EAT but only as far as a claimant is personally affected by the discrimination, which the claimant was not because he was not interested in having the job.

In para 19 Recruitment Revolution would in any case not have been liable under regulation 7 as being a recruitment agency and not an employer does not fall within the terms of regulation 7 at all but possibly under regulation 26 (making liable third parties who knowingly aid another to do an unlawful act), or under regulation 21 (dealing with the liability of recruitment agencies).

The EAT repeated its observation from Investigo that unlike the RRA and SDA the 2006 Age Regulations contains a lacuna in not providing a remedy against age discriminatory job advertisements.