Selecting staff
In Canadian Imperial Bank of Commerce v Beck EAT/0141/10, the EAT held that the employment tribunal was entitled to find that, notwithstanding the inherently unlikely nature of an age discrimination claim on the facts, the employer's deliberate use of the word "younger" in a person specification, contrary to expert advice, was sufficient to shift the burden of proof to the employer.
Ceri Hughes, David Parry, and Carly Mather, associates at Addleshaw Goddard, detail the latest rulings.
In Keane v Investigo and others EAT/0389/09, the EAT held that an experienced accountant who applied for jobs aimed at recently qualified accountants that she did not genuinely want was unable to complain of having suffered any disadvantage when she was not put forward for them.
In Wolf v Stadt Frankfurt Am Main [2010] IRLR 244 ECJ, the ECJ held that the German Government's restriction on recruitment as a firefighter to those aged 30 or under does not give rise to age discrimination because it constitutes a proportionate "genuine and determining occupational requirement" in pursuit of a legitimate aim, within the meaning of art.4(1) of the Equal Treatment Framework Directive.
The European Court of Justice has held that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive (2000/43/EC).
A review of a number of recent employment tribunal decisions suggests that some employers remain unaware of the implications of, or are struggling with, the Employment Equality (Age) Regulations 2006 (SI 2006/1031), which became law on 1 October 2006. The decisions also demonstrate the approach that the tribunals might take to the question of justification of discrimination and to the assessment of injury to feelings compensation.
In Anya v University of Oxford the Court of Appeal has ruled that where an employer behaves unreasonably towards a black employee, it is an error of law for a tribunal to direct itself that an inference of race discrimination is not to be drawn, without more, because the employer might very well behave in a similarly unreasonable fashion to a white employee.
In Marks & Spencer plc v Martins (19 December 1997) EOR79B, the Court of Appeal rules that it was an error for an industrial tribunal to find that the employer discriminated against an applicant on grounds of her race because its interviewers were guilty of "bias".
A Pakistani doctor who was not shortlisted for a medical post because he could not meet the job requirements was unlawfully indirectly discriminated against, rules an Edinburgh industrial tribunal (Chair: S Krietman) in Mian v Common Services Agency and Brotherston.
A Sri Lankan-born candidate was discriminated against when his application for the post of director of community services was turned down, a Bury St Edmunds industrial tribunal (Chair: D R Crome) has ruled in Abraham v Fenland District Council.
Employment law cases: HR and legal information and guidance relating to selecting staff.