Speculative discrimination claims by job applicants
Occasionally, but not often, so-called 'serial claimants' have been known to attempt discrimination claims by making numerous job applications with the intention of claiming that they were rejected on discriminatory grounds. The European Court of Justice (ECJ) was recently asked to consider whether job applicants, who have no intention of entering into a contract of employment, are entitled to compensation for discrimination.
A German company, R+V Allgemeine Versicherung AG (R+V), advertised for graduate trainees in various fields, one being law. Some requirements were that applicants had a very good and recent university degree in one of the specified fields, along with vocational experience. Applicants within the legal field were also required to have passed both state examinations, along with an employment law option, or have medical knowledge.
Mr Kratzer applied for a trainee legal position. His application emphasised that he fulfilled all requirements and more. His application went on to boast experience as a lawyer/manager within an insurance company, and that he held medical knowledge from dealing with his deceased's father detailed medical file. Mr Kratzer was also attending a training course to become an employment lawyer. However, Mr Kratzer's application was rejected.
Mr Kratzer wrote to R+V making a formal complaint and demanding €14,000 for age discrimination. R+V replied informing Mr Kratzer that the rejection of his application was part of an automatic process, was unintentional, and invited him to be interviewed. Mr Kratzer responded that he would only consider the interview should he be compensated. He relied on EU Directives which had been implemented into German national law (and which have also been implemented in the UK under the Equality Act 2010) to protect employees and job applicants from discrimination.
Mr Kratzer issued a claim for €14,000 for age discrimination. He also made a further claim of €3,500 for sex discrimination, on the basis that in the end R+V had employed 4 female and no male trainees.
The German court referred the question to the ECJ, on the basis that Mr Kratzer was not seeking recruitment or employment but merely the status of job applicant in order to obtain compensation for discrimination. In the context of those facts, the ECJ had no hesitation in ruling that the Directives did not protect such a job applicant. The ECJ also ruled that submitting applications for the sole purpose of being entitled to claim compensation for discrimination would also mean the person was not a 'victim' or someone injured sustaining loss or damage.
This case is helpful to employers and shows that speculative discrimination claims, where a job applicant has no real intention of being recruited, will not succeed. It reinforces a ruling in the UK from 2009, where an experienced 50-year-old accountant repeatedly applied for jobs which were advertised as suitable for newly qualified accountants. Her discrimination claims were rejected on similar grounds to Mr Kratzer's. However, employers must bear in mind the following points:
- In this case (and the 2009 UK case), the court had concluded that Mr Kratzer had no intention of being recruited and the ECJ was relying on that finding. Cases with these facts will be unusual, and hard to prove. Where, exceptionally, such vexatious claimants exist, they will simply need to give a good impression that they are serious about being recruited. If there is a well-founded suspicion that they are not, progressing with a job application may be a (slightly risky) means of "calling their bluff", but should only be considered after taking legal advice.
- The case also shows the pitfalls of applying automatic selection/rejection criteria in order to sift bulk job applications. As well as potentially resulting in unlawful discrimination, job applicants may challenge an automated short-listing system under the Data Protection Act 1998. According to the Employment Practices Data Protection Code job applicants should be informed if an automated system is used, and told how to make representations against any adverse decisions. Such a system must also be kept under review by the employer and should ensure it is not likely to produce discriminatory outcomes.
- Spurious job applications are rare, and it is very important not to accuse applicants of not being genuine unless employers hold convincing evidence to support those suspicions.
- As always, employers should be careful not to use certain terminology within their job advertisements to avoid age discrimination. For example, expressions such as "recent graduate", "youthful", "school leavers", or "GCSE qualifications only" will indirectly imply that you are looking for a younger employee and equally the expression "mature" could imply you are looking for an older candidate.
- In July 2016, Acas published guidance, "Recruiting staff" which addresses some of the issues involved and is a useful reminder of best practice.