No discrimination where job "applicant" was in fact a vexatious claimant
Wednesday, 24th August 2016
The European Court of Justice ("ECJ") has held that an individual job applicant who applied for jobs with the sole purpose of seeking compensation for discrimination when he was not appointed, and not actually to obtain employment, was not a "victim" who had sustained loss or damage, and so was not entitled to compensation under the Equal Treatment Directives (Kratzer v R+V Allgemeine Versicherung AG).
The Equal Treatment Directives prohibit discrimination in employment on the grounds of age, disability, religion or belief, sexual orientation, sex, marriage and civil partnership, pregnancy and maternity and gender reassignment. The Directives also extend this protection to job applicants.
These Directives are implemented in UK law by the Equality Act 2010.
R+V advertised for graduate trainees in various fields. Their advert said that applicants need to have a good university degree in a specified field, completed in the last year, or due to be completed shortly, along with relevant practical experience.
Mr Kratzer applied for a position indicating that he fulfilled more than the requested criteria, but his application was rejected by R+V. He complained to R+V, demanding compensation of EUR 14,000 for age discrimination. In response, R+V stated that the rejection of his application had been automatically generated and was not intended. They invited him to attend an interview, which Mr Kratzer declined, saying that he would discuss his future with R+V after he had received his compensation.
Mr Kratzer then issued a claim for age discrimination and included an additional claim of sex discrimination (for which he requested a further EUR 3,500 in compensation), on the basis that R+V had taken on four female trainees. Mr Kratzer's claim was unsuccessful at the first instance and on appeal the following questions were referred to the ECJ:
"Do the Directives provide protection against discrimination to an individual whose application makes it clear that they are not seeking recruitment or employment, but just the status of a job applicant in order to bring a claim for compensation. If so, should this be considered an abuse of rights under EU law?"
The ECJ held that an individual who applied for jobs with the sole purpose of seeking compensation when not appointed was not a "victim" who had sustained loss or damage, and so was not entitled to claim protection or compensation under the Directives.
The Directives provide protection to those "seeking employment", which could not be said for a job applicant with the sole purpose of seeking compensation.
The ECJ also confirmed that EU law cannot be used for abusive or fraudulent purposes.
This judgement is positive news for employers, as it should deter vexatious claims.
Employers should, however, be careful when applying automatic selection criteria to numerous job applications, as unintentional discrimination could result.