Latest decision confirms earlier UK appeal tribunal approach
A recent decision of the Court of Justice of the European Union (CJEU) has cast light on the unusual, but not altogether unheard of, practice of individuals applying for roles with no intention of taking them, solely to pursue compensation claims. The ruling confirms that job applicants must have a genuine interest in the role they are applying for before a discrimination claim can be made.
The outcome of the case Kratzer v R + V Allgemeine Versicherung AG is likely to remain relevant to UK employers, given how closely UK discrimination law is aligned with its European counterpart, even though CJEU decisions may no longer be binding in the UK following Brexit. However, employers should bear in mind that in a post-Brexit era (subject to the deal which emerges) it is possible that EU and UK equality protection may start to diverge if additional protection is brought forward under EU equality law or follows in the wake of CJEU decisions that go beyond existing statutory UK provisions.
The German company involved in the case had advertised trainee positions for graduates in a range of fields. Criteria for the roles included a good, relevant university degree completed in the last year, or to be completed in the coming months, as well as relevant practical vocational experience. Kratzer applied for a trainee legal position stating that, as well as meeting the requirements, he had experience and was used to responsibility as a lawyer and former manager with an insurance company. When his application was rejected, he sent the firm a written complaint demanding €14,000 for age discrimination.
He then brought an age discrimination claim in the German courts, and subsequently learned that the organisation had awarded all four graduate posts to women, although over 60 applicants had applied and were divided equally between men and women. He then claimed further compensation of €3,500 for sex discrimination.
National court
Kratzer’s claims were dismissed by the lower German courts. On appeal, the Federal Labour Court asked the CJEU to clarify whether EU discrimination law, in particular the equal treatment directives, was relevant to those who were only applying for jobs in order to bring compensation claims.
CJEU
The CJEU ruled that a person who was not seeking the post applied for was not covered by the equal treatment directives. It held that the purpose of these provisions was to provide effective protection against discrimination, in particular concerning “access to employment”. Someone applying for a role purely to seek compensation could not come under the definition of 'victim' in these directives. The court also confirmed that European law could not be used for abusive or fraudulent ends.
Comment
This decision is likely to be welcomed by employers and is in line with an earlier UK Employment Appeal Tribunal ruling in Keane v Investigo [2010]. In that case, an experienced accountant (she was 51) applied for a large number of jobs advertised online as being suitable for newly qualified accountants. When she was not offered an interview, she brought age discrimination claims. In this case, as well as her claim being unsuccessful, the employer's costs were awarded against her.
The difficulty for most employers in these circumstances is establishing that the applicant has no genuine interest in a role. In the Keane case, a pattern had emerged of the individual targeting junior roles and demanding compensation, having lodged claims against 21 different employers. Although she claimed to be genuinely interested in the roles, this was found to be unconvincing for a number of reasons, such as her lack of care and attention when applying for the posts, and being unable to satisfactorily explain why at that stage of her career she was seeking a junior role. She had also failed to seek feedback on her unsuccessful applications.
Such cases are exceptional, but the safest course for employers is continuing to ensure there is no discrimination either in their job adverts or in their recruitment processes. This includes not making assumptions, based either on age or in relation to any other protected characteristics under the Equality Act 2010. Where an individual genuinely has no interest in a role, recruiters could expect this to emerge from the quality of the application itself, which should ensure that it fails on its merits.
Alan Delaney is a director in the employment and pensions practice with Maclay Murray & Spens LLP
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