Berry v Recruitment Revolution

A person who has not applied for a job may have difficulty establishing that discriminatory recruitment arrangements affected them. Even if discriminatory job advertisements fall within regulation 7(1)(a) of the Employment Equality (Age) Regulations 2006, liability requires discrimination against the claimant through arrangements which impacted on them. A claimant who was not deterred from applying, and declined to apply after an apparent error was corrected, could not establish that requirement. The Tribunal expressed doubt about contrary reasoning in Cardiff Women’s Aid v Hartup, but found that point immaterial. The European decision in Firma Feryn did not create a right to compensation for a person who had not applied for the advertised job.

The appellant brought four age-discrimination appeals concerning advertisements for jobs described as suitable for school-leavers or recent graduates. In Berry v Recruitment Revolution, the Employment Tribunal struck out the claim because the appellant had not applied for the job. The other claims were dismissed, or withdrawn with an indication that they would have failed substantively. The appellant relied on regulation 7 of the Employment Equality (Age) Regulations 2006, European Union law and human rights law, and argued that discriminatory advertisements were actionable. The central issue was whether a person who had not applied for the advertised employment could show that the advertisement unlawfully discriminated against him.

1. All four appeals dismissed. The appellant had not demonstrated that the advertisements had any actual impact on him.
2. Regulation 7(1)(a) may be capable of covering the issuing of discriminatory job advertisements. The Tribunal doubted whether the reasoning in Cardiff Women’s Aid v Hartup, [1994] IRLR 390, was correct if it held otherwise. That issue was left open because it could not assist the appellant.
3. Liability under regulation 7(1)(a) requires the claimant to have been discriminated against by the relevant arrangements. The complained-of act must therefore have impacted on the claimant. The appellant was not deterred from applying; after the wording was corrected and he was invited to submit his CV, he declined to apply.
4. The approach was consistent with Keane v Investigo, UKEAT/389/09/SM, where an ostensibly submitted application was found not to be genuine because the claimant had no intention of taking the job. The appellant’s position was weaker because he had not applied at all. Centrum voor Gelijkheid van Kansen voor Racismebestrijding v Firma Feryn NV, [2008] IRLR 732, and Kucukdeveci v Swedex GmbH & Co KG, C-555/07, did not establish an individual right to compensation in these circumstances.
5. The Tribunal also observed that a recruitment agency was not itself an employer within regulation 7. Possible liability under regulations 21 or 26 was not established and had not been properly argued.
6. The purpose of the Regulations was not to provide income for persons pursuing advertisements for jobs they had no genuine wish or intention to fill. Such conduct could expose a claimant to costs, as in Investigo.

• Employment Appeal Tribunal: dismissed all four appeals. The Tribunal proceeded on the basis of the reasoned decision in Berry v Recruitment Revolution and applied its reasoning to the other appeals.
• Employment Tribunals: the Recruitment Revolution claim was struck out for having no reasonable prospect of success. The Wells Tobias and Ruston Hemmings claims were dismissed. The PTS Consulting claim was dismissed on withdrawal, with the Tribunal stating that it would have failed substantively.