Far too many examples of badly written adverts continue to be seen with the associated risk of formal action being taken against the advertiser. One well known “serial litigant”, who has brought over 50 tribunal claims against employers and recruitment agencies in recent years, is a past master of exploiting this important legislation.
However, in the recent case of Berry v Recruitment Revolution and others there is some protection from deliberate exploitation of the law, as the EAT has now held that a job applicant cannot bring a discrimination claim in respect of an advert for a job that he has no interest in taking.
Mr Berry, who was in his 50s, had sent an email to Recruitment Revolution, a recruitment agency who had advertised the role, saying that he appeared to be prevented from applying by reason of his age and that unless he heard back he would assume that there was no point in applying. Recruitment Revolution advised Mr Berry that the advertisement had been mistyped and that he should send in his CV, which would be considered with all other CVs received.
Mr Berry ultimately chose not to apply for the advertised job and brought a claim alleging that the advert was unlawfully discriminatory under regulation 7(1)(a) of the Age Regulations (which provides that it is unlawful for an employer to discriminate against a person through its recruitment arrangements) by referring to “school leavers” or “recent graduates”.
The EAT dismissed his appeal holding that while a job advert could form part of “arrangements” for recruitment under regulation 7(1)(a) and could therefore in theory be the basis of a discrimination claim, a claimant had to be impacted by the “arrangements” in question. In this case the job advert had not impacted upon Mr Berry and he had not been deterred from applying for the job by the allegedly discriminatory wording. He therefore could not bring a discrimination claim.
In addition, the EAT indicated that the purpose of the Age Regulations is 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.” They warned that “those who try to exploit the Regulations for financial gain in such circumstances are liable… to find themselves facing a liability for costs.” This is clearly a warning to serial litigants such as Mr Berry.
Kelburn Recruitment Ltd offer a full Recruitment Advertising service which includes a compliance check of the wording used, in addition to the preparation, design and submission of the Clients job advert. The cost is little or no more than you would encounter when advertising directly in the media, but you benefit from our knowledge and experience to ensure your job adverts are non- discriminatory whilst also effective in attracting talented and relevant applicants.