Job Applicants Not interested in Obtaining Job Cannot Claim Discrimination
Job applicants who apply for a job simply so that they can claim compensation for discrimination are not protected by discrimination laws.
The European Court of Justice has ruled that job applicants who apply for a job simply so that they can claim compensation for discrimination are not covered by EU Directives on Equal Treatment. The EU Directives protect those seeking employment. However, a person who is applying for a post with the sole purpose of bringing a claim is not “seeking employment”, as they do not want the post applied for. They cannot therefore bring a discrimination claim.
In Kratzer v R + V Allgemeine Versicherung, Mr Kratzer applied for a graduate trainee post with R+V Allgemeine Versicherung (R+V). It rejected his application. He considered this was due to his age and demanded compensation for age discrimination. R+V then invited him to interview, stating that the rejection of his application had been automatically generated and was not in line with its intentions. He declined to attend an interview, suggesting they could discuss his future employment once his compensation claim had been satisfied.
He claimed age discrimination in the German courts. The German court asked the European Court of Justice (ECJ) whether a job applicant can claim discrimination if the only reason they apply for a job is to obtain compensation for discrimination.
The ECJ ruled that they cannot. The EU Directives protects those seeking employment. However, a person who is applying for a post with the sole purpose of bringing a claim is not “seeking employment”, as they do not want the post applied for. They are not entitled to compensation as they are not a victim of discrimination. It is also settled case law that EU law cannot be relied on for abusive or fraudulent ends.
The ECJ went on to say that it was for the national court to determine whether the factors evidencing abuse are present in any given case. The German court will therefore need to consider whether they were.
In reality it may be difficult to prove that a job application is a sham and that a job applicant is simply applying for jobs to obtain discrimination compensation. However, where an employer is able to prove this, it will be able to argue that the claim should be rejected. The decision in this case accords with an earlier UK EAT decision (Keane v Investigo) in which the EAT ruled that where a job application is not genuine, the job applicant does not suffer a detriment if their application is refused and so cannot bring a discrimination claim.
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