The facts

Mr Berry, a man in his 50s, brought a large number of claims against recruitment agencies and employers complaining about job advertisements which suggested that they were targeted at younger people; for example by referring to the job being a "junior role", suitable for "school leavers" or "recent graduates".

Mr Berry did not apply for any of these positions and did not argue that he was himself deterred in applying for any of them. In fact, the recruitment agencies and employers invited Mr Berry to apply (notwithstanding the wording of the advertisements) but he declined. Mr Berry’s cases were struck out by the Employment Tribunal and Mr Berry appealed.

The appeal

Mr Berry relied on the case of Cardiff Women’s Aid and subsequent ECJ case law in Firma Feryn. He argued that the principle established inCardiff Women’s Aid could not be supported in the light of Firma Ferynand that the discriminatory job advert should fall within the definition of “arrangements” under Reg 7 of the Age Regulations (now s.39 Equality Act 2010)

In Cardiff Women's Aid the EAT held that a discriminatory advert could not, itself, form the basis of a claim by an individual because it did not constitute an "arrangement" for determining who should be offered employment. This case was decided under the Race Relations Act under a provision identical to Reg 7 of the Age Regulations. In Cardiff Women’s Aid, the EAT decided that it was only when an individual went on to experience personal discrimination, usually as a result of a rejection for a job, that a claim arises.

The Firma Feryn 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.

The decision

The EAT rejected Mr Berry’s appeals and distinguished these two cases.

In its judgment, the EAT seemed sympathetic to Mr Berry’s suggestion that Cardiff Women’s Aid is wrong and a discriminatory advert should fall within the "arrangements" for recruitment in regulation 7(1)(a), but refrained from reaching a decision on this point as it had not heard full argument. In any event, this was not this issue that was fatal to Mr Berry’s appeal.

The EAT held that an employer will only be liable 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.  Mr Berry was not deterred from applying.  On the contrary, when the mistaken impression given by the wording of the advertisement was promptly rectified by the employer, he declined to apply for the job. 

The EAT also observed 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 milking an easy settlement out of employers, are liable to face an order for costs.

This case shows a lacuna in the old Age Regulations whereby no body had the power to bring proceedings on the basis of someone being simply deterred from applying (unlike in Firma Feryn where the Belgian equivalent of the Equalities and Human Rights Commission was empowered to bring proceedings). This has since been rectified in the Equality Act 2010 and the EHRC now has the power to issue proceedings in these circumstances. (s.24, Equality Act 2006 as amended).

The judgment is available here.

Berry -v- Recruitment Revolution and others UKEAT/0190/10