Serial litigants face risk of paying costs


The Employment Appeal Tribunal (EAT) has dismissed the appeals of “serial litigant” Mr. John Berry. 

Mr Berry brought (at least) four sets of proceedings in the Employment Tribunal complaining about job adverts which used terminology suggesting that they were targeted at younger people, for example by referring to “school leavers” or “recent graduates.”  The respondents were primarily recruitment agencies but also included potential employers.

 For example, in the Recruitment Revolution (“RR”) case RR advertised a job of “junior administrator/administrative assistant” on behalf of a client, indicating that it would be suitable for a school-leaver or someone who had recently taken A levels. Mr Berry responded that he was interested in the job but noted that they sought a school leaver who had finished A Levels, and that he is over 50 years old and passed his A levels many years ago and he “will assume therefore unless I hear from you to the contrary that there would be no point in pursuing this job application any further.’  Mr Berry never in fact applied for the job, despite an invitation to do so, which was reconfirmed in an email.

Mr Berry argued that such adverts were unlawfully discriminatory under the provisions of the Employment Equality (Age) Regulations 2006; without asserting that he was himself deterred by it from applying for the job.

Mr Berry did not attend the hearing (instead relying instead on written submissions), and the EAT was therefore not able to express a concluded view on his motivation for bringing the litigation.  Underhill J emphasised that the purpose of the 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. He also gave the warning that those who try to exploit the Regulations for financial gain are liable to find themselves facing a liability for costs.

 Philip Henson,  comments:

 The management time, and legal costs, involved in defending serial (or vexatious) claims can be a significant drain on resources. It is worth noting that in several of Mr Berry’s claims he applied for a reference to the European Court of Justice, which clearly indicates that he was prepared to take his claims further. Costs orders can often be the best medicine to cure the perpetual headache of serial litigants.

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Filed under Case Law Update, Costs, Employment Tribunal Focus

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