Case of the week: Keane v Investigo and others

Keane v Investigo and others

Facts

M E Keane is an experienced accountant, now aged 51. Over a short period in mid-2007, she responded to at least 20 adverts, posted online, for accounting jobs. In each case, the ads made clear that the job was aimed at recently qualified accountants and the responsibilities were appropriate for someone with comparatively limited experience. On each occasion, as soon as it became clear that she was not being offered an interview, if not sooner, Keane served the relevant employment agency with an age discrimination questionnaire. Shortly after that, she commenced employment tribunal proceedings, claiming age discrimination.

Decision

At the employment tribunal, the employment agencies argued that Keane did not genuinely want any of the jobs for which she applied. They argued that the applications were made partly to make a point about age discrimination, but also partly with a view to making a claim in which the respondents would pay money to settle. Both parties agreed that if Keane had not made a genuine application, then she could not be said to have suffered a detriment if she was not put forward for that position.

However, even putting the issue of detriment aside, the tribunal found there had been neither direct or indirect discrimination. It then went on to consider whether Keane’s applications were genuine. It held they were not.

To be genuine, Keane must have wanted the job set out in the ad, in that if it had been offered to her she would have accepted it, and thus the purpose of the application was to obtain the job. The tribunal therefore decided to make a costs award against Keane, to be assessed in the County Court. Keane appealed all aspects of the tribunal’s decision.

At the Employment Appeal Tribunal (EAT), Keane sought to withdraw the concession made at the employment tribunal that if her applications were not genuine, she could not be said to have suffered a detriment. But the EAT refused to allow her to do this. It said that she had not established any exceptional reason for allowing the concession to be withdrawn. Its main reason for this was that it simply did not think the concession was wrong in the first place. The EAT then said that it had to go on to consider whether the tribunal had erred in law in concluding that Keane’s applications had not been genuine. Rejecting Keane’s arguments on this point, the EAT said the tribunal’s decision could not be held to be perverse. On this basis, the costs award was also unimpeachable.

Implications

While an employer should always carefully consider the content of its job ads and have legitimate business reasons for any criteria stipulated in relation to a vacancy, this case confirms that even where an ad is potentially discriminatory, a job applicant will not be able to succeed in a complaint of discrimination unless they are genuinely applying for the position. This is because complaints of both direct and indirect discrimination require the applicant to have suffered a detriment. This, together with the costs award made in this case, should assist in deterring litigious individuals from making spurious claims.

Sandra Wallace, head of equality and diversity, DLA Piper

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