It will be a relief to organisations that the European Court has
held that a job applicant, who only made an application for a role
in order to will compensation, is not protected from discrimination
(Kratzer v R+V Allgemeine Versicherung AG). The Equal
Treatment Directive's purpose is to provide protection to those
actually seeking employment.
The employer (AV) had advertised for graduate trainees with the
advertisements specifying that the applicants would need to have a
good university degree in the specified fields. The requirement in
the legal field was that the applicant had to have passed both
state examinations and an employment law option, or have medical
knowledge. Mr Kratzer applied for a trainee position in the legal
field showing how he met the requirements of the advertisement
– he had been a lawyer and a senior manager in insurance. His
application was rejected.
Mr Kratzer then made a written complain to AV demanding
compensation for age discrimination. AV said that the rejection of
his application had been computer generated automatically and had
been a mistake. They invited him to an interview. Mr Kratzer
declined the invitation to interview for the role and suggested
that his future employment with AV could be discussed after they
had paid him his compensation.
He then brought an age discrimination claim which was amended to
include a sex discrimination claim when he discovered that that the
trainee roles had been taken by women.
The European Court held that where a job application is made for
the purpose of pursuing a claim, the applicant could not be
protected from discrimination as a person "seeking
employment", confirming that the EU law could not be relied
upon for abusive or fraudulent ends. It remains for the national
court in Germany to determine whether Mr Kratzer had artificially
applied for a position with the aim of obtaining compensation
The decision will undoubtedly support employers against claims
by vexatious job applicants but the case raises questions over the
risks involved in having automated decision making in recruitment
processes. Also, in this case it was quite clear from Mr
Kratzer's response to the invitation to the interview that he
was after compensation but in most cases it will not be so evident
to an employer whether a job applicant is a genuine applicant.
Employers should continue to ensure that their recruitment
processes are run in such a way as to avoid discrimination and
unconscious bias and that the applicants are selected on merit
relating to the actual job in question.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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