Keane v Investigo and others EAT/0389/09

age discrimination | whether detriment | applications not genuine

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal finding that a job applicant did not suffer age discrimination when her applications were not genuine.

Ms Keane, a 51-year-old accountant with a number of years’ experience, applied for at least 20 positions that were clearly advertised as being for a recently qualified accountant with limited experience. As soon as it became apparent that she was not being interviewed for a post she served a questionnaire under reg.41 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031) and commenced employment tribunal proceedings for age discrimination, under reg.21 (relating to age discrimination by employment agencies). At the employment tribunal the respondents argued that Ms Keane did not genuinely want any of the positions for which she had applied, but that she had applied to make a point about age discrimination and to achieve settlements. It was conceded by both parties that, if the tribunal found that Ms Keane had not made genuine applications and was not interested in the positions, she had not suffered a detriment if she was not put forward for them. Nor would she have suffered a disadvantage if the advertisement gave rise to potential indirect age discrimination. The employment tribunal found that there was no direct or indirect discrimination. However, Ms Keane’s claim also failed because her applications had not been genuine. The tribunal held that the claims were misconceived and an abuse of process and awarded costs against her. Ms Keane appealed. She applied to withdraw the concession she had made in the employment tribunal. One of the arguments that she advanced was that there is no direct authority under the 2006 Regulations to suggest that an application must be genuine before a statutory disadvantage can be suffered.

The EAT pointed out that the definition of discrimination in reg.3 requires less favourable treatment of the claimant. Indirect discrimination requires disadvantage. These are referred to together as “detriment”. The EAT held that an applicant who is not considered for a job in which he or she is not interested could not be said to suffer a detriment. Ms Keane sought to rely on Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 ECJ, in which the European Court of Justice held that a finding of direct discrimination in relation to recruitment under the Race Directive (2000/43/EC) was not dependent on the identification of someone claiming to be a victim. However, the EAT in the present case held that the reasoning in Centrum did not apply to this case and did not consider the possibility of candidates who did not want the job in the first place. That an application must be genuine before an individual could suffer a statutory disadvantage was self evident. Therefore, the concession made in the tribunal was correct and should not be withdrawn.

The EAT also held that the tribunal finding that Ms Keane’s applications were not genuine was not perverse. If the decision was that claims were made with an ulterior motive, the award on costs was also sound. The appeal was dismissed.

Case transcript of Keane v Investigo and others (Microsoft Word format, 102K) (on the EAT website)

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