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Job Applicants Outside Scope Of Discrimination Protection Where Application Made Purely To Seek Compensation As Opposed To Recruitment

The European Court of Justice (ECJ) has held that, if an individual applies for a job with the sole purpose of seeking compensation for discrimination, they will not be entitled to claim protection or compensation under the relevant legislation. 

The European Equal Treatment Directives prohibit discrimination in employment or in the recruitment process on the grounds of certain protected characteristics; namely age, disability, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity, or gender reassignment.  The Directives are implemented in the UK by the Equality Act 2010.

In the recent German case of Kratzer v R + V Allgemeine Versicherung AG C-423/15, Mr Kratzer applied for a graduate trainee role at R + V Allgemeine Versicherung AG (the Company).  Mr Kratzer claimed that, not only did he satisfy all of the requirements of the role advertised, he also had additional experience and expertise which would make him suitable for the role. 

Mr Kratzer’s application was rejected. Two months later Mr Kratzer submitted a written complaint to the Company, demanding compensation of €14,000 as a result of age discrimination. The Company explained that his application response had been automatically generated and was a mistake and the Company invited Mr Kratzer to an interview. Mr Kratzer declined the invitation, indicating that his future with the Company could be discussed after his compensation claim had been addressed.

Mr Kratzer brought a formal claim in the German tribunal for age discrimination, claiming compensation of €14,000. He later made an additional claim for compensation of €3,500 for sex discrimination. 

The Tribunal asked the ECJ to assess whether an individual whose job application makes clear that they are simply seeking compensation is protected by the Equal Treatment Directives.

The ECJ confirmed that such an individual could not be considered a “victim” of discrimination where they had applied for the role simply to seek compensation. In addition, the ECJ noted that it was settled case law that EU law cannot be relied on for abusive or fraudulent purposes. The ECJ ultimately left it to the German court to decide whether Mr Kratzer’s application was in fact a sham designed to enable him to bring a claim of discrimination and to seek compensation. 

The ECJ’s decision in this case will of course be welcomed by employers and recruiters. However, the case does serve as a reminder that companies should be alert to the potential for discrimination in the recruitment process as job applicants, as well as employees, can be covered by the UK’s equality legislation. 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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