Serial Litigants Face Liability for Costs When Bringing Spurious Claims

In the case of Berry v Recruitment Revolution and others (UKEAT/0190/10), the Employment Appeal Tribunal (EAT) held that individuals who complain of potentially discriminatory advertisements for jobs in which they have no genuine interest – and exploit discrimination legislation for financial gain – are liable to face an order for costs.  This is a welcome decision for employers, particularly when faced with serial litigants.

Mr Berry, a man in his fifties, made several separate age discrimination claims based on job advertisements, complaining that they used terminology aimed at younger people, for example "school leavers" and "recent graduates".  He claimed that the advertisements were unlawfully discriminatory under the Employment Equality (Age) Regulations 2006 (which provides that it is unlawful to discriminate against a person in the arrangements made for the purposes of determining who should be offered employment, or by refusing to offer or deliberately not offering employment).  Mr Berry complained about the terms of the advertisements but did not apply for the jobs, despite being invited to apply by some of the respondents.  As a result, all of his claims were struck out or dismissed on similar grounds. Mr Berry appealed to the EAT. 

The appeals were all dismissed. It was held that the purpose of the Age Regulations was not to provide a source of income for persons complaining of potentially discriminatory advertisements for jobs which they had no intention to fill. Those who exploited the Age Regulations for financial gain would be faced with liability for costs. This case serves as a warning to individuals who bring vexatious claims in the hope that employers will settle rather than see the case through to a full hearing.