Good news for Employers facing "Serial Litigants" in Employment Tribunal

9 December 2010

The Employment Appeal Tribunal (‘EAT’) has this week provided some welcome news for beleaguered employers facing claims from vexatious litigants bringing claims after applying for jobs that they never intend to take simply in order to claim discrimination when they are turned down. In Berry v Recruitment Revolution the President of the EAT (essentially its most senior judge) Mr Justice Underhill, emphasised people who bring discrimination claims in respect of job advertisements they say discriminate against them, but they have no genuine interest in actually getting the job, but hope they will be paid off to go away by the potential “employer", may be made to pay the legal costs of the organisations they sue. This runs contrary to the usual rule in employment tribunals that each party bears only its own legal costs – win or lose.

Mr Berry, the claimant in this case, was reported in the Sunday Times earlier this year. He is in his 50s, and is alleged by the paper to respond to job ads looking for a “school leaver” or “recent graduate” etc., and immediately sues the advertiser for age discrimination claim, whereupon the organisation that placed the ad settles to avoid a costly employment tribunal claim. Often companies end up paying thousands of pounds to make him go away. This eminently sensible judgment from the President of the EAT, threatening him and people like him with having to pay the legal costs of companies brave enough to defend such time-wasting claims will, hopefully, dissuade him and others like him from bringing such spurious claims in the future. In the meantime, though, it is also a reminder of the age discrimination legislation (recently consolidated into the Equality Act 2010) and the need to carefully draft job advertisements in as neutral terms as possible to avoid such claims even starting.

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