19th November 2010


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The Employment Appeal Tribunal (EAT) has just dismissed four appeals from John Berry against recruitment agencies and employers. All four Respondents had posted job adverts requesting “school leavers” or “recent Graduates”. Mr John Berry, age 54, claimed that he had been discriminated against because of his age by these adverts even though he failed to apply for any of the positions even when given the opportunity to do so.

The Sunday Times wrote about Mr Berry back in February of this year, when his cases were going through the tribunals. The article can be found at At the time, Mr Berry had lodged at least 57 similar claims in employment tribunals over the country over the past 3 years. According to the Sunday Times each of these claims was accompanied by an invitation to settle the claim for £3,500.

The EAT explained that Mr Berry did not attend any of the tribunal hearings. Nor did he attend the EAT hearing in which his four appeals and his request to raise the matter to the European Court of Justice were rejected.

In one of the employment tribunal claims brought by Mr Berry, the judge stated:

“It is also clear that the Claimant has made numerous contacts with employers regarding advertised jobs asserting age discrimination.  He has taken none of the jobs that have been so advertised but we understand has agreed to many settlements out of court.  It seems that Mr Berry may be more concerned to highlight what he sees as a lacuna in the law than truly apply for a job but is nevertheless interested in receiving financial compensation.”

The EAT concludes: “If the Appellant had taken the trouble to attend this hearing, we would have wished to put those observations and criticisms to him.  Not having had that opportunity, we express no concluded view on his motivation in bringing this litigation.  We wish, however, to emphasise 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, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.”

Is this going to be enough to stop Mr Berry from continuing to lodge age discrimination claims? It seems unlikely. According to the Sunday Times, Mr Berry has ignored previous costs orders made against him.

If Mr Berry’s serial applications were to be motivated by financial gain and if the number of claims as of February 2010 were true, we can only speculate as to the income generated by Mr Berry. Assuming that one employer out of two would take a commercial approach and settle out of court Mr Berry would have earned over £200,000 over the last three years. Mr Berry refused to talk to the Sunday Times reporter but commented in an email: “I like many other older job seekers are (sic) suffering age discrimination here in all these issues. You are grossly misinformed about the facts.”

We would welcome your views as to what you think could be done.

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