Is it age discrimination if someone is rejected for a job because they are "too old", but that someone didn't actually want the job?

Facts

Ms Keane was 50 years old and an experienced accountant. She applied for a large number of jobs with employment agencies which were aimed at newly qualified accountants. When she was unsuccessful, Ms Keane claimed age discrimination.

Ms Keane’s counsel conceded during the course of proceedings that Ms Keane had no interest in any of the jobs and applied to try to make a point about age discrimination, but also so that when she was unsuccessful in her application she could bring age discrimination claims which those subject to the claim would want to settle.

Ms Keane had brought claims against a large number of employment agencies in total (this appeal related to eleven in Watford alone, ten or twelve further claims were brought in London but all were dismissed at the Central London Employment Tribunal), but by the time of the hearing in the Employment Tribunal, had settled with the majority of agencies leaving only five remaining. The Employment Tribunal said that Ms Keane had suffered no detriment as even if she were successful, she would not have accepted any of the positions. The Employment Tribunal also found that, in any event, if the acts were direct or indirect discrimination (which they were not) then it would have found they were justified.

Following this hearing, Investigo applied for a costs award and were successful. The Employment Tribunal made an award for costs to be assessed in the County Court.

Ms Keane therefore appealed to the Employment Appeal Tribunal. The basis of Ms Keane’s appeal was that during the course of proceedings, her counsel made the concession without her authority that she had not suffered a detriment as her applications were not genuine. Ms Keane argued that the concession should be withdrawn for a number of reasons, one of which was that “there is no direct authority under the Regulations for the proposition that an application must be genuine before a statutory disadvantage can be suffered”.

The EAT decision

The Employment Appeal Tribunal therefore considered what exactly a detriment or “disadvantage” is and looked at the ECJ case of Centrum voor Gelijkheid van Kansen en voor Racismebestrijding -v- Firma Feryn NV [2008] IRLR 732, which was raised in argument by Ms Keane’s counsel. This case concerned race discrimination; a Belgian employer publicly announced he did not want to recruit Moroccan workers, the Belgian body for equality brought proceedings in the national court and the question referred to the ECJ was whether a public statement of the kind made by the employer in that case, without more, constituted direct discrimination. The ECJ held that it did.

However, the Employment Appeal Tribunal distinguished Centrum voor Gelijkheid van Kansen en voor Racismebestrijding from Ms Keane’s case as the ECJ’s judgment assumes that the mischief in the employer's conduct lies in the fact that candidates for a post may be dissuaded from applying and thus lose the chance of getting a job. The reasoning simply does not consider at all the possibility of candidates who do not want the job in the first place.

The Employment Appeal Tribunal rejected Ms Keane’s arguments in favour of withdrawing the earlier concession and dismissed her appeal, further stating that the costs orders against her were “unimpeachable”.

A copy of the judgment in this case can be found here.

Recently, there has been a surge in the number of people bringing frivolous age discrimination claims against employers who use words like “school leaver” or “recent graduate”. Click here for a news story on this issue.

Ms M E Keane -v- Investigo and others [2009] UKEAT 0389_09_1112