Appeal No. UKEAT/0190/10/LA
UKEAT/0419/10/LA
UKEAT/0420/10/LA
UKEAT/0421/10/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 2010

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
(SITTING ALONE)

MR J BERRY	APPELLANT

RECRUITMENT REVOLUTION	RESPONDENT

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

MS V BRANNEY

MRS J M MATTHIAS

MR J BERRY	APPELLANT
PTS CONSULTING (UK) LTD	RESPONDENT

MR J BERRY	APPELLANT
WELLS TOBIAS RECRUITMENT	RESPONDENT

MR J BERRY	APPELLANT
RUSTON HEMMINGS AND CARSON KAY RECRUITMENT	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

	APPEARANCES

For the Appellant	Written submissions	

SUMMARY
AGE DISCRIMINATION

Appellant made several claims of age discrimination based on the terms of advertisements for jobs for which he did not apply – Claims held to have been rightly struck out/dismissed – Investigo v Keane followed – Reasoning of Cardiff Women’s Aid v Hartup doubted; but even if it was wrong that could not assist the Appellant – Observation that claimants who bring age discrimination claims in respect of allegedly discriminatory job advertisements in which they have no genuine interest purely in the hope of being paid off are liable to face an order for costs.

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	The Appellant in the four appeals before us is a man in his middle fifties.  He has brought (at least) four sets of proceedings in the Employment Tribunal complaining about job advertisements which used terminology suggesting that they were targeted at younger people, for example by referring to “school leavers” or “recent graduates.”  It is his case that the advertisements in question were unlawfully discriminatory under the provisions of the Employment Equality (Age) Regulations 2006.  The Respondents are primarily the recruitment agencies which published the advertisements, but in at least two cases the potential employers themselves are Respondents.  

2.	In the first, in point of time, of the appeals before us, Berry v Recruitment Revolution and Power Placements, the Appellant’s claim came before Employment Judge Etherington sitting at London (Central) on a pre-hearing review on 8 October 2009.  He struck the case out as having no reasonable prospect of success.  His Reasons were sent to the parties on 10 December 2009.  A subsequent application for a review was dismissed by a decision with Reasons promulgated on 26 January 2010.  

3.	The next claim, Berry v Wells Tobias Recruitment, came before a Tribunal at London (Central), chaired by Employment Judge Clark, on 20 May 2010 and was dismissed.  An application for a reference to the European Court of Justice was also dismissed.

4.	The very next day, another of the Appellant’s claims, Berry v Ruston Hemmings and Carson Kay Recruitment, came before a different Tribunal at London (Central), again chaired by Employment Judge Clark, and suffered the same fate. 

5.	In none of those three cases did the Appellant attend the hearing; and in relation to the later two he made no request for written Reasons and none were accordingly prepared.

6.	Finally, on 24 May 2010 the case of Berry v PTS Consulting UK Limited came before a Tribunal chaired by Employment Judge Etherington at London (Central).  Again, the Appellant did not attend.  The judgment of the Tribunal reads as follows:

“The unanimous judgment of the Tribunal is that the claims for age discrimination are dismissed on withdrawal by the Claimant.  They would have failed substantively in any event.  Further, his application for the Tribunal to refer this case to the European Court of Justice is refused.” 

The Appellant applied for a review of that decision, which was rejected.  Reasons for that rejection were sent to the parties on 27 July 2010.  It appears from the Reasons that the Appellant’s withdrawal had not in fact been unequivocal.  The position appears to be as follows.  The Tribunal had made various orders at a previous case management discussion with which the Appellant had not complied.  The Respondent accordingly applied to strike out his claim on that basis.  On 5 May the Appellant wrote to the Tribunal, in effect indicating that he was withdrawing his substantive claim, that is the claims of discrimination, but only insofar as it would enable him nonetheless to make an application to the Tribunal to refer the matter to the European Court of Justice.  We are not sure whether that ought to be treated as a “withdrawal”, since if the claims were withdrawn there would be nothing that could be referred.  However, it is clear from the Judgment as already recited that the Tribunal would have dismissed the claims on the merits in any event.  The position adopted by the Appellant appears to reflect an acknowledgement on his part, as recorded at paragraph 4 of the review Reasons, that he had no remedy as a matter of domestic law.

7.	The Appellant has appealed against each of those orders.  A preliminary hearing has been directed in all four appeals, on the basis that the Respondents need not attend.  The Appellant himself has also indicated, though without giving any reason, that he does not intend to attend and that he would rely on his written submissions, which take the form of a skeleton argument.  We have accordingly heard no oral argument of any kind.

8.	The absence of any written Reasons in the cases of Wells Tobias and Ruston Hemmings is a potential obstacle to the appeal in those cases, but in practice the points which the Appellant wants to make apply equally in all four cases and his Notices of Appeal are very similarly worded.  For convenience, we will take the case of Recruitment Revolution first, since we have a reasoned “primary” decision from the Employment Judge, and a full skeleton argument from the Appellant, together with written submissions from the Respondents.

9.	Formally, the case of Recruitment Revolution, being an appeal from a Judge sitting alone, is listed before myself only.  But since the lay members agree with my reasoning, which is applicable also to the other cases, I will use the first person plural throughout.

10.	We should start by identifying the relevant legislation.  Regulation 7 (1) of the 2006 Regulations is headed “Applicants and Employees”.  Paragraph 1 provides, inter alia, that it is 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”.  We shall be referring later to regulations 21 and 26, but we need not set them out.

11.	The facts of the Recruitment Revolution case, which were not in contention before the Tribunal, can be briefly summarised.  Recruitment Revolution had advertised a job of “junior administrator/administrative assistant” on behalf of a client, in terms indicating that it would be suitable for a school-leaver or someone who had recently taken A levels.  Paragraphs 6 and 7 of the Judge’s Reasons read as follows:

“6.  The Claimant in response to the advertisement contacted the First Respondent by email on Sunday 10 May in the following terms - ‘Whilst interested in the above job I note however that you seek a school leaver/recently finished A levels for the job.  However, I am over 50 years of age having passed my A levels many years ago and will assume therefore unless I hear from you to the contrary that there would be no point in pursuing this job application any further.’  The Respondent replied within 30 minutes of receipt telling the Claimant to feel free to send his CV across to them for the position - they would get it straight in front of their client.  The day following receipt of that document the Respondent answered thanking the Claimant for the email, indicating that the advert had been mis-typed - it should simply have said that school leavers and graduates would be considered, i.e. that the job was not closed to somebody with no previous work experience.  They told the Claimant that they were also looking for people with previous administration/commercial experience and asked the Claimant to send his CV to them.  They assured him that his application would be considered alongside all other CVs received.  
7.  The Claimant never in fact applied for the job despite that invitation, which was reconfirmed in an email.” 

That account of the facts is entirely consistent with the ET1, in which the Appellant simply complained of the terms of the advertisement, without asserting - which indeed on the facts found he could not conscientiously have done - that he was himself deterred by it from applying for the job.

12.	It appears from the Reasons that the Appellant put his case in his written submissions to the Tribunal squarely on the basis of regulation 7 of the 2006 Regulations.  The Judge decided that the case should be dismissed on the straightforward basis that the Appellant had not applied for the job advertised: he had simply made an enquiry and had declined the opportunity to apply for the job when it was confirmed to him that it would be considered.  He regarded the case as covered by the decision of this Tribunal in Cardiff Women’s Aid v Hartup [1994] IRLR 390.  In that case, an employer had advertised a job as an information centre worker, specifying that a black or Asian worker was required.  The applicant brought a claim in the industrial tribunal claiming that the placing of the advertisement constituted unlawful discrimination contrary to section 4 (1) (a) of the Race Relations Act 1976, which is in identical terms to regulation 7 (1) (a) of the 2006 Regulations.  This Tribunal held that the industrial tribunal had no jurisdiction to entertain the claim.  The reasoning is very short, but the essence appears to be that discriminatory advertisements were caught, and caught only, by Part IV of the 1976 Act, in respect of which claims could only be brought by the Commission for Racial Equality.

13.	The Appellant pleads four grounds of appeal against the Judge’s decision as so reasoned.  We take those grounds in turn.  

14.	Ground A reads as follows:

“These issues in the case have raised grave concerns amongst others and given the gravity of the disparity in protection (Age Act) as compared to other legislation (race/sex, etc) should be referred to the ECJ urgently.  Parliament imposed the restriction/lacuna pre-Centrum Voor v Firma Feryn NV [2008] IRLR 732 and in terms of the convention, Cardiff Women’s Aid is now tripe law and Firma should take the lead in any decision.  Also, under EC employment law and human rights law/EC employment law, at present, there are tens of thousands of such discriminatory job adverts as this case circulates in the UK, causing huge damage in the UK labour market with no protection/criminal sanction in place.  Continuing violations art 13, no effective remedy.” 

15.	The essential point of law apparently being made in that ground is that the decision of the European Court of Justice referred to (whose full title is Centrum voor Gelijkheid van Kansen voor Racismebestrijding v Firma Feryn NV) compelled the Employment Judge to grant a remedy in this case.  We have already in this Tribunal considered the Firma Feryn decision; see our Judgment in Keane v Investigo UKEAT/389/09/SM (paragraphs 20 and 21).  We need not repeat what we said there.  It lends no support to any contention that an individual who has not applied for a job which is advertised in discriminatory terms has any right to claim compensation.  That conclusion is not altered by the recent decision of the European Court of Justice in Kucukdeveci v Swedex GmbH & Co KG (C-555/07) to which the Appellant refers in his skeleton argument.

16.	Ground B reads as follows: 

“This case should be reinstated as the job advertisement should fall into the arrangements of Reg 7 (1) (a).” 

17.	Insofar as it is the Appellant’s case that the language of regulation 7 (1) (a) is capable of covering the issuing of discriminatory advertisements, we see the force of it.  Although without the benefit of argument we do not wish to express a definitive view, if the reasoning in Cardiff Women’s Aid is to the contrary, we doubt whether it is correct, and we understand from the Appellant’s skeleton argument that at least one Employment Tribunal has taken the same view.  But that is not the Appellant’s problem here.  An employer will only be liable under regulation 7 (1) (a) if the claimant was discriminated against by the arrangements in question.  That must mean that the act complained of must have impacted on him in some way.  On the facts as found, that was not the case here.  The Appellant was not deterred from applying.  On the contrary, when the mistaken impression given by the wording of the advertisement was promptly rectified, he declined to apply for the job.  

18.	The position is in fact not essentially different from that which we considered in Investigo.  In that case, the claimant ostensibly applied for the job which was advertised, but the application was held by the Tribunal not to have been genuine, in the sense that she had no intention of taking the job even if it were available to her.  Here, the Appellant did not even apply.  

19.	We should for completeness note a further point, although it was not apparently taken below nor is it referred to in the Respondent’s written submissions.  Recruitment Revolution is not itself an employer but a recruitment agency.  It does not therefore in fact fall within the terms of regulation 7 at all.  It might in theory nevertheless be liable under regulation 26, which renders liable third parties who knowingly aid another to do an unlawful act; but it is not at all clear that it could be liable on that basis, since there was no evidence that the wording of the advertisement was the responsibility of the employer as opposed to an error (whether a typographical error, as claimed, or otherwise) on the part of the agency.  There is a separate basis of liability for recruitment agencies under regulation 21, but that was not sought to be relied on in this case and there may be some question as to whether it would have applied in any event.

20.	Ground C reads as follows:

“The Equality and Human Rights Commission under reference 1/1690891 have also expressed concerns generally and should be invited to intervene here as well as opposing counsel.” 

That is not of course, strictly speaking, a ground of appeal but we should make it clear that we see nothing in the present case on which we would have benefited from any assistance from the Commission.  There may arguably be important points about the law relating to discriminatory advertisements: in particular, there may be, as we observed in Investigo, a lacuna inasmuch as the 2006 Regulations do not provide a remedy against age discriminatory job advertisements equivalent to that in what was Part IV of the 1976 Act and the equivalent provisions of the Sex Discrimination Act 1975.  But that is not something that could usefully be explored in the context of the present claim, given the Judge’s findings of fact.  (We should add that we have not, since the point does not arise and we have not had the benefit of oral argument, considered whether any such lacuna may have been filled by the provisions of the Equality Act 2010.)

21.	Ground D reads as follows:

“Finally, other employment judges in identical cases have raised these Firma Feryn concerns and refused a strike-out.  Therefore there is also disparity in this case judgment and other cases.” 

We have not seen the terms of the other Employment Tribunal decisions referred to and are unable to verify whether they are indeed, as the Appellant asserts, on identical facts.  If they are, then it would follow from the view which we have expressed above that they should not succeed.

22.	In his skeleton argument the Appellant makes reference not only to the law of the European Union but also to the European Convention of Human Rights.  We need only say that we can see no possible breach of his human rights in the circumstances of this case.  

23.	We would therefore dismiss the appeal in the Recruitment Revolution case. 

24.	Against that background, we can deal much more briefly with the other three appeals.

25.	Whether the absence of written Reasons in the Wells Tobias and Ruston Hemmings cases precludes the Appellant from appealing in those cases makes no difference in practice, since his Notices of Appeal raise essentially the same points as we have already considered above.  Certainly, the Appellant is not in a position to demonstrate that the discriminatory terms of the job advertisements complained of had any actual impact on him, and the ET3s in both cases suggest that the facts were in fact very similar to those of the Recruitment Revolution case.

26.	As regards PTS, the reasons for the review decision state explicitly at paragraph 15 that:

“It is clear on the evidence before us that the Claimant was not an applicant for the job advertised by the Respondent, and in relation to which he contacted them.  The Respondent, having realised the error in its advertisement, invited the Claimant nevertheless to apply - he did not do so” 

The case is therefore plainly on all fours with Recruitment Revolution.

27.	We should mention one point taken in the skeleton argument as regards the Ruston Hemmings case.  The Second Respondent in that case was a firm called Carson Kay Recruitment.  The Appellant says that no ET3 was ever lodged by them.  We are unable to verify whether that was so, but the short answer is that it appears neither to have been taken below nor to have been taken in the Notice of Appeal.

28.	For those reasons, we dismiss all these appeals.

29.	We wish, finally, to add this.  In the Reasons in the Recruitment Revolution case Employment Judge Etherington recorded that he understood that the Appellant had made some 50 similar Employment Tribunal applications.  In the ET3 lodged by Talentedge Ltd, the Second Respondent in the Wells Tobias case, they say this:

“In this particular instance we do not believe that John Berry was personally disadvantaged by our breach and suffered no loss or detriment.  Mr Berry lives in Bristol and the role was a £15,000 to £18,000 position based in London.  I am aware that Mr John Berry is a vexatious litigant and serial claimant.  I am familiar with a network of recruitment consultancies that have been targeted by Mr Berry to make money.  I believe that he did not have any intention of applying for the position and without an application or a CV I do not see how we could have discriminated against him.  If Mr Berry would like to send his CV to us, we will certainly consider him for any future opportunities that suit his skills.” 

The ET3 goes on to refer to communications with ACAS which are said to further support the Respondent’s belief that the Appellant is “a serial claimant” who “has no intention of applying to positions but is merely doing it for personal financial gain.”  In the review Reasons in the PTS judgment, Judge Etherington said this at paragraph 16:

“It is also clear that the Claimant has made numerous contacts with employers regarding advertised jobs asserting age discrimination.  He has taken none of the jobs that have been so advertised but we understand has agreed to many settlements out of court.  It seems that Mr Berry may be more concerned to highlight what he sees as a lacuna in the law than truly apply for a job but is nevertheless interested in receiving financial compensation.” 

If the Appellant had taken the trouble to attend this hearing, we would have wished to put those observations and criticisms to him.  Not having had that opportunity, we express no concluded view on his motivation in bringing this litigation.  We wish, however, to emphasise that the purpose of the Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.