Note - this article has been updated in November 2010 to take account of an employment appeal tribunal judgement in respect of John Berry - the other serial litigant who has made the news in 2010.
The second case that has caught our eye in the last few days involved the EAT and what has become to be known as a ‘serial litigant’ in the Employment Tribunal. These are people who bring multiple cases in employment tribunals. These cases are almost always some sort of discrimination cases, for example, because they have been rejected in a job application. The volume of cases suggests that the only reason they are applying for the job is so that they can bring a claim. This particular case seems to be the first where the serial litigant in question was truly shot down in flames: she was ordered to pay an estimated £50,000 in costs after having her cases comprehensively rejected by the Employment Appeal Tribunal.
The woman concerned is called Margaret Keane and the case has now been reported by the EAT under the name “Ms M E Keane V Investigo and Others”. Ms Keane was an experienced accountant with nine years’ experience in senior management roles. She had applied for 20 or more jobs advertised as being for recently qualified accountants. Although she was clearly overqualified for these roles she did constantly apply for them. She then issued proceedings for age discrimination. In at least one case she issued a statutory age discrimination act questionnaire before she had received a decision in respect of her application. Some press comment on this case has said that she settled many of the cases gaining about £100,000 in total although this isn’t clear from the EAT judgement. Unfortunately for her, however, some of the companies decided not to settle but to defend their actions in an Employment Tribunal. An Employment Tribunal dismissed her claims against the companies involved on the basis that she was not a genuine applicant for these jobs but simply wanted to claim compensation.
Margaret Keane is the latest in a very long line of serial litigants of this nature. The writer of this article has personal knowledge of an applicant in the North of England who, some 15 years or so ago, applied for every single vacancy in the motor trade that he could under both an obviously female name and, insofar as a name can, one which pointed to white ethnicity, and also his own name, which pointed to his being of an ethnic minority. Whereas ‘she’ was often given an interview, ‘he’ was not, albeit that the CVs demonstrated similar experience and qualifications. He was clearly being discriminated against and was successful in most, if not all, of his claims for compensation. Although he was a ‘serial litigant’ he seemed to be genuinely applying for job after job and only taking action when he was rejected. There seemed, therefore, nothing wrong with what he was doing.
In the case of Margaret Keane, however, the situation was different in that both the Tribunal and the EAT found that she had no genuine interest in obtaining the jobs she was applying for but was simply applying so that she could claim age discrimination compensation. Some factors that the EAT noted against her were that she sent the same application and C.V. to every job and did not tailor her application in any way; that she on at least one occasion submitted an age discrimination questionnaire before the result of her application was known; that she told one of the recruitment agencies involved that she wasn’t interested in it finding her a job for which she may have been more suitable; and the lack of any explanation or lack of a good explanation as to why she was applying for jobs for which she was overqualified. In fact, it was shown that she had deliberately sought out newly qualified positions thereby showing that she was deliberately applying for jobs so as to be able to bring an age discrimination claim. These facts led Mr Justice Underhill, presiding in the EAT, to make a very firm judgment saying that this case should serve as authority for the fact that an application must be genuine if a Tribunal is to consider awarding any compensation.
In the event, Mrs Keane was ordered to pay the employment agencies’ costs, which the Law Society Gazette reported as being up to £10,000 for each of the five agencies. It is not very often that employment tribunals order costs to be paid by an unsuccessful claimant.
This case may do some good in reducing the number of serial Employment Tribunal claimants. However, anybody is still free to file an employment tribunal claim on grounds of discrimination if they genuinely feel that they have been discriminated against and they can do this many times for genuine applications. The converse, of course, is that employers are still at risk of discrimination claims if they reject an applicant who demonstrates the criteria needed for the job.
It is good advice for companies to ensure that the relevant criteria for a vacancy are worked out in advance and communicated via the job advertisement or to the agency. Traditionally the criteria have been split into essential and desirable ones. Our advice is that employers should decide what the essential and desirable criteria for the successful candidate are when considering the position. Having done so, they should draft the employment advertisement on that basis and then carefully sift the resulting applications only against those essential and desirable criteria, and preferably do it on an anonymous basis so that there can be no question of bias or discrimination. The candidates that meet the essential and desirable criteria should, of course, be considered for an interview on an equal basis. A question that we have been asked in the past is “What if there are far too many applicants meeting the essential and desirable criteria?” In that case, a number of things may be done; these include a further sift, perhaps being more rigorous about the candidates’ compliance with the criteria or, if this isn’t possible, even picking the number of candidates to be interviewed at random from those candidates complying or demonstrating the required essential and desirable criteria. Of course, it goes without saying that the wording of any advertisement should not be discriminatory in itself. If you suspect that a claim brought against your company is from a ‘serial litigant’ please contact us. There are ways of finding out how many previous cases that person has brought and, in appropriate cases, this research should be done.
We have previously mentioned a gentleman called John Berry. Mr Berry has allegedly brought about 50 employment tribunal claims for age discrimination. His practice was to search for online recruitment advertisements which suggested that they were targeted at younger people, for example, by referring to “school leavers” or “recent graduates. On the strength of these types of words and without actually applying for the role Mr Berry would issue an age discrimination claim and then attempt to settle. In October 2010 the Employment Appeal Tribunal heard four appeals by John Berry. The decision has recently been released and is that all four appeals were rejected.
Any company faced with a claim by someone like Margaret Keane or John Berry, or indeed faced with any claim that appears suspicious, should search the register of tribunal judgements to see if they are faced with a serial litigant. If they are then the last paragraph of the recent appeal judgement involving Mr Berry will prove very useful in dealing with such claims. In the last paragraph of the appeal judgement, Mr Justice Underwood referred to one of the 4 respondent recruitment company’s belief that ‘the Appellant is “a serial claimant” who “has no intention of applying to positions but is merely doing it for personal financial gain.” He then said that if Mr Berry had ‘taken the trouble’ to attend the appeal hearing he would have put this point to him. However, in Mr Berry’s absence he felt he couldn’t comment on Mr Berry’s motivation in bringing the claims but emphasised that the purpose of the [Age Discrimination] Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, to find themselves facing liability for costs.
Along with the Margaret Keane decision, this judgement will prove to be extremely useful in getting costs awarded against serial litigants. Of course, no company wants to end up in tribunal in the first place regardless of the chance of getting costs awarded. As such, it is better to avoid them in the first place. In this context the best advice is to train staff and review all advertisement literature and practice. You should avoid anything that implies or suggests that a person of a particular age should not apply for the job being advertised. The only exception to this is in a limited class of jobs for which age can be said to be a Genuine Occupational Requirement. Furthermore, as well as language, images with age connotations should be avoided as should age-related criteria. For example, requiring an applicant to have 10 years’ work experience may, unless such a criterion can be objectively justified, amount to unlawful indirect age discrimination against younger applicants. In fact, adverts should not include age limits at all unless these can be objectively justified. Problems can also result if words such as ‘young’, ‘dynamic’, ‘energetic’ or ‘mature person’ are used. All of these could result in a complaint of age discrimination since they suggest an employer is looking for applicants from a particular age group.
The John Berry appeals can be found on the EAT website under the case numbers UKEAT/0190/10/LA UKEAT/0419/10/LA UKEAT/0420/10/LA and UKEAT/0421/10
We would be happy to advise any company on this area of law further and to deal with any discrimination claims that may be brought. As such, on this, or any other employment law issue, please do not hesitate to contact Steen & Co Employment Solicitors.