One of the problems with anti-discrimination law is that it sometimes results in “phoney claims”. The problem must, of course, be kept in perspective and overall the fact that the law is sometimes abused is a small price to pay for the valuable protections it affords to genuine victims.
The problems of phoney claims generally centre around job applications. At one time there were quite frequent newspaper reports of people with African or Asian names putting in two applications for the same job, identical in all respects except for the name. Typically the applicant would use a very anglo-saxon sounding name in one application and his real name in another. When the phoney anglo-saxon got invited to an interview but the real person did not, the real one would threatened to sue on the basis that the only reason for his not having been invited for interview must have been his race. Employers would be tempted to pay a few hundred pounds to get rid of the nuisance even if a tribunal would be unlikely to make an award if it was aware of the facts.
We haven’t heard much of that particular scam recently (no doubt many employers now have systems in place which weed out phoney “dual applications”). Instead a new version of the same scam has appeared, this time making use of anti age discrimination law.
This “age-discrimination” version is a little more subtle than the “race discrimination” variety as there are no relatively easy to spot double job applications. Instead an older job applicant applies for a job which is clearly most suitable for a young person and stresses his age in the application. If he is not invited for an interview he may claim, or threaten to claim, unlawful age discrimination. If the case goes to a tribunal and the tribunal is persuaded that the applicant never genuinely intended to take the job, the scamster is unlikely to get far. He will not have have suffered a detriment and so will not succeed in a discrimination claim (an example was an EAT case almost exactly a year ago – Keane v Investigo & ors).
In another case a Mr Berry, a man in his mid-50s, brought at least four sets of proceedings in the London (Central) Employment Tribunal claiming that job advertisements breached the (now-replaced) Employment Equality (Age) Regulations 2006 because words such as “recent graduate” or “school leaver” suggested that they were aimed at younger people. Mr Berry never actually applied for the jobs in question but nonetheless brought claims to an employment tribunal. He did so largely in reliance on a 2008 ruling by the European Court of Justice in which that court held that “Public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory…”. Mr Berry claimed in effect that what was sauce for the goose (EU immigrants) should also be sauce for the gander (British people of a certain age) and therefore that this 2008 ECJ ruling meant he had legal rights. He also claimed for good measure that the job advertisements breached his rights under the European Convention on Human Rights.
He lost his claims in the tribunal and, perhaps surprisingly, decided to appeal. In October 2010, Underhill J in the Employment Appeal Tribunal had no trouble in dismissing his appeals, stressing not only that the legislation is not designed to provide income for people who “complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill” but also that those who did so are likely to be liable for costs.
While the cases show that employment tribunals will not support scamsters, notably job applicants and others who have no intention of taking up advertised jobs, the fact remains that in practice such claims can be a nuisance. Only too often it can be less costly and more convenient for an employer simply to pay off a potential claimant rather than fight a case. Notwithstanding the suggestion noted above by Mr Justice Underhill that an unmeritorious claimant is likely to be liable for costs, there is no certainty of a costs order being made and, even if it is, in practice there is no certainly of being able to enforce it against the scamster. The government’s plan to abolish the 65 so called “default retirement age” (see the previous item) will do nothing to help. However other government plans may – there are rumours that the official review of employment laws currently under way will consider recommending that more claimants should be required to put up some form of cash security before being allowed to bring cases to an employment tribunal. If so, this would no doubt deter at least some phoney claimants.
The moral for employers and especially employment agencies is that great care should be taken to ensure that job advertisements avoid use of any words, phrases or images which could suggest that a job is only suitable for people of a particular age unless they are quite sure that such a requirement can be justified as a “proportionate means to achieve a legitimate aim” (to quote the wording used in the relevant legislation). In any case of doubt you should contact us for advice.