Veitch Penny LLP - Exeter | Crediton, Devon

Case

Keane –v- Investigo & others
Employment Appeal Tribunal – 11 December 2009

Issues

(1) Age discrimination
(2) Practice and procedure
(3) Costs

Facts

Mrs Keane was a well qualified 51 year old accountant. Through agencies, she applied for more than 20 accountant posts explicitly stating that they required “newly qualified accountants”. When she was not invited to interview, she brought 11 age discrimination claims against the agencies involved.

An issue arose as to whether Mrs Keane needed to have a genuine interest in the jobs in question in order to bring these claims. At first instance, the Respondent argued that Mrs Keane did not genuinely want any of the positions and that the claims were brought to obtain compensation outside of court or to make a broader point about age discrimination. Both parties agreed at this stage that if Mrs Keane had no real interest in the application then she could not be said to have suffered a detriment if she was not put forward for the position.

The Tribunal considered the claims and found there could be no discrimination against her as she had not wanted the jobs in question in the first place. It found her claims were not genuine and an abuse of process. Costs were awarded in favour of the agencies.

Mrs Keane appealed the case to the Employment Appeal Tribunal (EAT), and at the same time seeking to withdraw the concession she had made at the earlier Tribunal.

Decision

At the EAT, Mrs Keane relied on a number of European judgments where anti-discrimination bodies had brought claims against employers rather than individuals. One such case had been brought by an anti-discriminatory body against a Belgian employer who had openly stated it would not employ Moroccan immigrants. The EAT confirmed that this type of action could not be brought by an individual claimant.

It also confirmed that the application must be genuine before disadvantage could be shown. It was noted that the applications were poor, were not tailored to each employer and she didn’t follow up the applications once made as one might have expected a genuine applicant to do. She had little explanation why she might want such a junior role and in some cases had sent age discrimination questionnaires before she received a response to the applications. She had also declined an offer from one agency in order to explore other more suitable job opportunities. She had issued her claims very quickly once her applications had been rejected. Accordingly, Mrs Keane’s appeal was dismissed.

Comments

This is an encouraging and helpful judgment for employers, which should deter those bringing claims on a speculative basis and if such claims are brought, enable judges to deal with them swiftly. Nevertheless, this does not apply to cases where genuine applications are made. Employers should continue to consider its employment advertisements carefully, and be able to justify the reasoning for the criteria specified.

Rachel Billen – Associate Solicitor, Employment 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