Job applicants: to what extent are they protected from discrimination?
It will be a relief to organisations that the European Court has held that a job applicant, who only made an application for a role in order to will compensation, is not protected from discrimination (Kratzer v R+V Allgemeine Versicherung AG). The Equal Treatment Directive’s purpose is to provide protection to those actually seeking employment.
The employer (AV) had advertised for graduate trainees with the advertisements specifying that the applicants would need to have a good university degree in the specified fields. The requirement in the legal field was that the applicant had to have passed both state examinations and an employment law option, or have medical knowledge. Mr Kratzer applied for a trainee position in the legal field showing how he met the requirements of the advertisement – he had been a lawyer and a senior manager in insurance. His application was rejected.
Mr Kratzer then made a written complain to AV demanding compensation for age discrimination. AV said that the rejection of his application had been computer generated automatically and had been a mistake. They invited him to an interview. Mr Kratzer declined the invitation to interview for the role and suggested that his future employment with AV could be discussed after they had paid him his compensation.
He then brought an age discrimination claim which was amended to include a sex discrimination claim when he discovered that that the trainee roles had been taken by women.
The European Court held that where a job application is made for the purpose of pursuing a claim, the applicant could not be protected from discrimination as a person “seeking employment”, confirming that the EU law could not be relied upon for abusive or fraudulent ends. It remains for the national court in Germany to determine whether Mr Kratzer had artificially applied for a position with the aim of obtaining compensation only.
The decision will undoubtedly support employers against claims by vexatious job applicants but the case raises questions over the risks involved in having automated decision making in recruitment processes. Also, in this case it was quite clear from Mr Kratzer’s response to the invitation to the interview that he was after compensation but in most cases it will not be so evident to an employer whether a job applicant is a genuine applicant.
Employers should continue to ensure that their recruitment processes are run in such a way as to avoid discrimination and unconscious bias and that the applicants are selected on merit relating to the actual job in question.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.