Case update (3): Discrimination – It’s a sham!

Summary:  Is an individual able to bring a discrimination claim when they have applied for a job only in order to be able to do so?

No, says the ECJ in Kratzer v R + V Allgemeine Versicherung available here.

Facts:   A German company, R + V Allgemeine Versicherung AG, advertised for graduate trainees in various disciplines, including law. Applicants to the legal roles were required to have passed their qualifications, done an employment option, and/or have medical knowledge.

Mr Kratzer applied for a trainee legal position. He stated that he was a lawyer and former manager with an insurance company. He said he was going to do a course in employment law and, as he had dealt with the death of his father, he had experience of dealing with a large medical law file.

Mr Kratzer was not short-listed for the role and his application was rejected.  Mr Kratzer then wrote to the company demanding compensation of ‚¬14,000 for age discrimination. The company invited him to an interview, stating that his application had originally been rejected via an automatically generated response. Mr Kratzer declined and brought a claim to the Labour Court for damages for age discrimination. Mr Kratzer later amended his claim to include a claim for further compensation of ‚¬3,500 for sex discrimination, on the basis that the company had taken on mostly female trainees, although the 60 plus applicants for the posts were divided almost equally between men and women.

Mr Kratzer’s claim was dismissed by the Labour Court and on first appeal. Mr Kratzer appealed to the Federal Labour Court who referred to the CJEU the question of whether discrimination protection applies to an individual who has made it clear that they want the status of “job applicant“ in order to bring a claim for compensation. The German Court asked whether this amounted to an abuse of rights under EU law.

The CJEU decided that where an application is submitted with the sole purpose of entitling the individual to claim compensation for discrimination they will not come within the scope of the relevant EU law (the Framework and Equal Treatment Directives).

The wording of the Directives is clear that protection for job applicants is intended for those “seeking employment“. An individual making a job application with a view to obtaining compensation is not “seeking employment“ and cannot, therefore, qualify for the protection. Such an individual would not have the right to be claim protection or compensation and they would not have been the victim of discrimination. EU law cannot be relied on for abusive or fraudulent ends.

Implications:  This is a helpful decision and positive news for employers, as it should help deter vexatious claims. It is also in line with previous EAT case law which had said job applicants who would not be interested in accepting the role if it were offered could not claim discrimination if their application was unsuccessful.

However, as it is not possible for employers to know when a job application is from a sham applicant who does not genuinely want the post, employers must continue to ensure that their recruitment processes are free from discrimination.

In practice this means that employers must continue to:

• put together the job description, person specification and job advertisement with care, attention and clarity in respect of the requirements and expectations of the role;
• use a standard, consistent and objective recruitment process, which does not allow for individual bias; and
• consider minimising any personal information related to protected characteristics on applications forms (e.g. age, sex, race) to avoid unconscious bias occurring amongst those dealing with recruitment. Indeed, the Government is currently spearheading a campaign to get employers to work towards ‘name blind’ recruitment to reduce bias in the recruitment process and the CIPD is supporting this by promoting name blind recruitment as standard practice.