‘Serial Litigants’ Face Liability for Costs


The Employment Appeal Tribunal (EAT) has dismissed four appeals by a man who brought claims of unlawful discrimination under the Employment Equality (Age) Regulations 2006, based on the terminology used in job advertisements (Berry v Recruitment Revolution and others). The claims had been either struck out or dismissed by the Employment Tribunal, which also refused an application for a reference to be made to the European Court of Justice. The claimant, John Berry, was not present at any of the hearings.
Mr Berry was the subject of an article in the Times, in February this year, in which it was claimed that he had made over 60 claims of age discrimination against employers and recruitment agencies because they were responsible for job advertisements targeted at younger people, for example by referring to ‘school leavers’ or ‘recent graduates’. It was reported that he was believed to have received thousands of pounds from those who chose to settle rather than fight the claims.
Each of the four cases before the EAT raised essentially the same points. In examining the facts in the case against Recruitment Revolution, the EAT considered the findings that the recruitment agency had replied to Mr Berry’s communication regarding a job as a junior administrator, inviting him to send his CV for consideration by its client and indicating that the advert had been mis-typed. It was not intended to exclude particular applicants and should merely have said that school leavers and graduates would be considered. Mr Berry did not in fact apply for the post.
The EAT held that an individual who has not applied for a job which is advertised in discriminatory terms has no right under the Employment Equality (Age) Regulations 2006 to claim compensation. To succeed in a claim, a person must show that they had a genuine wish or intention to fill the post and were a victim of discrimination.
Whilst declining to give a view on Mr Berry’s motivation for bringing the litigation, Mr Justice Underhill went on to make a general point that those who try to exploit discrimination legislation purely for financial gain are liable to find themselves facing liability for the costs of the party they are attempting to sue. Furthermore, the EAT could see no possible breach of Mr Berry’s human rights in the circumstances of this case.
Employers are advised to make sure that all job advertisements are drafted so as to avoid such claims. Contact <<CONTACT DETAILS>> for advice on ensuring your recruitment policies and procedures are compliant with the Equality Act 2010.

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