In the case of Keane v Investigo and Others the Employment Appeals Tribunal (EAT) has confirmed that an applicant for a job who has no interest in accepting it has no claim for discrimination if the application is unsuccessful.
In this case Mrs. Keane, an experienced accountant aged 50, applied to various employment agencies for a large number of jobs advertised as suitable for newly qualified accountants. As soon as it became clear that she would not be offered an interview, Keane served the employment agency in question with a questionnaire under the Employment Equality (Age) Regulations 2006, followed very shortly by an Employment Tribunal claim for age discrimination.
Keane asserted that she filed the claims to make a stand against age discrimination, however this argument was rejected when it emerged she had made up to £100,000 from settling claims with up to 12 businesses.
The EAT upheld the original decision of the Employment Tribunal, ruling that since Keane was not interested in taking the job if offered, she had not suffered discrimination. There were several persuasive factors indicating that Keane did not actually want the jobs she was applying for. Keane was unable to adequately explain why she wanted a job aimed at someone with far less experience than she had, she never followed up her applications by telephone, and when contacted by one recruitment agency to explore alternative roles, she declined. Furthermore, none of Keane’s applications were specifically tailored to the job she was applying for and she often sent in a questionnaire under the Employment Equality (Age) Regulations 2006 before she knew she had been rejected.
It should be noted that the EAT stated that there may be circumstances where an applicant applies for a job genuinely but with little expectation of getting it. There may also be applicants applying for jobs they are over-qualified for, especially in the current economic climate. Employers need to be mindful therefore that not all job applications that do not exactly fit the bill are vexatious.
This decision is seen as a welcome development for employers and employment agencies and makes it clear that where a claimant does not genuinely want the job applied for, they do not suffer discrimination if they are not considered for it. In order to have suffered a detriment a claimant will have to show they have been put at a disadvantage or have been comparatively unfavorably treated. They will not be able to show this if they would not have accepted the job in the first place. If an applicant is only interested in the possibility of the claim rather than the actual job, the employer can now defend themselves if they do not consider the claimant for the role and the claimant runs the risk of being considered a vexatious litigant.
In this case Keane has been ordered to pay the Respondent’s costs, to be assessed in the County Court, which are expected to be up to £10,000 for each Respondent.
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