Veitch Penny LLP - Exeter | Crediton, Devon

Case

Clarke v Gap
Employment Tribunal - 20 March 2007

Issues

(1) Employment Equality (Age) Regulations (“the Regulations”)
(2) Age discrimination
(3) Job Application

Facts

Mr Clarke lodged a claim against Gap for age discrimination. He had seen an advert for a stock assistant in which Gap had inadvertently stipulated a minimum age of 25 in the advert. In actual fact Gap had done a lot of work to ensure compliance with the Regulations and the advert had inadvertently been printed on their behalf. There was no age requirement in respect of the position and a number of stock assistants were employed below that age.

The key point to note was that Mr Clarke never applied for the position. Consequently A pre-hearing review was held to determine whether Mr Clarke was permitted to continue with his claim for age discrimination.

Decision

The Tribunal found that he could not bring a claim and his claim was struck off. As he had not applied for the post, he could not have suffered less favourable treatment in relation to “the arrangements made for the purposes of determining to whom the employer should offer employment”. In order for a claim to exist, the individual would have needed to apply for the post and then be rejected on grounds of their age. The placing of an advertisement could not be “an arrangement”. Simply placing an advert did not breach the legislation in itself as a rejected applicant may not be successful with their claim if the employer could demonstrate that the requirement for a particular age was justified.

Comments

This is a sensible decision which is believed to be one of the first Tribunal judgments under the Regulations. The Tribunal stated that an alternative outcome would enable any member of the public to bring claims against the employers when there had been no detriment or loss suffered. It is also a timely reminder to employers to check their recruitment activities and those of any recruitment agency they may use.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.