Job Application Discrimination Claim

In the recent case of Kratzer v Allgemeine Versicherung (“AV”) AG C-423/15 the European Court of Justice (“ECJ”) had to decide whether a job applicant is entitled to protection from discrimination, where they have only applied for a role in order to seek compensation, not employment.

The claim was decided under German law, which came from the same European Directive as implemented in the UK by the Equality Act 2010. The direction (as with the Equality Act 2010) prohibits discrimination on the grounds of race, ethnic origin, gender, religion or belief, disability, age or sexual identity.

The facts of the case is that Mr Kratzer applied for a graduate trainee. In his application Mr Kratzer confirmed that in his opinion he fulfilled all the requirements set out in the job advert, together with additional skills he could also transfer to the role advertised as he had been employed in a managerial role and been a lawyer.

Mr Kratzer’s application was rejected by AV, which prompted Mr Kratzer to send a letter of complaint demanding compensation on the grounds of age discrimination. AV responded by inviting Mr Kratzer to a meeting to discuss his complaint. This offer was rejected by Mr Kratzer.

Mr Kratzer then brought a claim for age discrimination (which he subsequently amended to include sex discrimination).

The German Tribunal dismissed Mr Kratzer’s claims. He then appealed this decision, together with subsequent decisions, resulting in his claim being heard by the ECJ.

In essence the ECJ held that where a job application is submitted by a claimant with the sole purpose of seeking to provide the claimant with grounds to claim compensation for discrimination, this does not come within the scope of the protection afforded by the legislation. This case confirmed case law (EU and UK) that legislation cannot be relied upon to promote a sham or abusive claim of discrimination.

Whilst this provides protection to employers from sham claims of discrimination, this case should not be relied upon unless there is certain evidence to do so where suspicious job applications are received.

Employers should exercise due care and attention when considering all job applications received, and remain wary about the exact reasons for rejecting any job applications, should they be challenged on the reason for rejection by the unsuccessful applicant.

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