Facts

Mr Akhtar applied for a job advertised on the Indeed employment search engine. This was for a position at a chartered accountants called Ormerod Rutter. The job advertised was for a Document Scanning Administrator on a fixed term contract of about 12 months. The primary role of the administrator would be to scan and index client files to Ormerod Rutter’s accountancy software to decrease the use of paper in the office.

Mr Akhtar sent a covering letter and resume to Ormerod Rutter. On 29 January 2018, Mr Akhtar received a rejection letter from Ormerod Rutter’s recruitment manager, Belinda Sinfield. In this rejection letter, she stated that Mr Akhtar’s experience was “too strong for what we require”, but she was happy to discuss this further if Mr Akhtar wished.

Mr Akhtar, considered that this was an act of age (and race) discrimination. In response to the claim, Ormerod Rutter invited the Employment Tribunal (ET) to strike out the application, believing the claim to be vexatious and having no reasonable prospect of success.

Decision

The ET first found that the claim was not vexatious as there was no evidence that Mr Akhtar’s motive was to “subject Ormerod Rutter to inconvenience, harassment and expense out of all proportion to any gain that might accrue”.

The ET then looked at whether there were reasonable prospects of success of the claim. The ET asked Mr Akhtar to identify which particular age group he identified with for the discrimination claim. Mr Akhtar argued that only 18 to 36 year olds had been invited for job interviews, whereas those who were 37 years old and above (the age group he belonged to), were not invited.

The ET found Mr Akhtar’s claim to be “fatally flawed” for two main reasons.

1. Mr Akhtar’s age was not written on either the covering letter or resume. At best, Ormerod Rutter could only estimate how old Mr Akhtar was by looking at academic qualification dates. But even then, an arguable estimate of Mr Akhtar’s age could have been 35 or 36, both ages not falling within Mr Akhtar’s identified age group.

2. The ET had before it a document from the same interview process showing an applicant who was interviewed and then offered a job on 6 February 2019. That successful applicant was born in 1966, which clearly contradicted with Mr Akhtar’s alleged discriminated age group. Mr Akhtar tried to argue that the rejection letters’ reference to his experience as being “too strong” was an indicator of age discrimination. The ET rejected this, stating it was a reference to experience in previous roles and not a reference to age.

Mr Akhtar’s claim of age discrimination (and race) was struck out for having no reasonable prospect of success.

The judgment is available here.

Mr W Akhtar v Ormerod Rutter Chartered Accountants: 1302342/2018, Birmingham Employment Tribunal, 11 February 2019