Do the provisions of the Equal Treatment Directive apply to job applicants purely seeking compensation? The Court of Justice of the European Union (CJEU) recently considered this question in Kratzer v R&V Allgemeine Versicherung AG.
The CJEU held that No: Job applicants purely seeking compensation are not covered by EU discrimination law.
The European Equal Treatment Directive (2000/78/EC) aims to ensure that persons of a particular religion or belief, disability, age or sexual orientation do not suffer from either direct discrimination (differential treatment based on a specific characteristic) or indirect discrimination (any provision, criterion or practice which puts people in the above categories at a disadvantage compared to others) in the workplace. This includes discrimination in relation to selection criteria, recruitment conditions and promotions.
In March 2009, employer R&V advertised trainee positions for graduates in the fields of economics, mathematical economics, business and law. Mr Kratzer applied for this trainee role on the basis of his experience in the legal field, his management experience, and his training to become an employment lawyer.
R&V rejected Mr Kratzer’s application stating that it was currently unable to offer him a post. On discovering that his application was unsuccessful, Mr Kratzer sent a written complaint against R&V, claiming €14,000 compensation for age discrimination on the basis of the Directive. R&V then invited Mr Kratzer to an interview stating that the rejection was automatically generated and it was not in line with its intentions.
Mr Kratzer declined the invitation, suggesting that his future at R&V be discussed once his compensation claim was settled. Upon learning that the positions had been given to females only, he then claimed separate compensation against the company of €3,500 for sex discrimination.
The CJEU considered that his application for a trainee position was not submitted with a view to obtaining that position, but only with a view to obtaining the formal status of an applicant. The Court found that his sole intention was to claim compensation on the basis of the Directive rather than be considered genuinely for the position. In this case, the person making the application in the circumstances was not seeking to obtain the job for which he was applying, and so could not therefore be considered a ‘victim’ of discrimination within the meaning of the Directive. The Court held the view that Mr Kratzer had applied insincerely for the post, with the goal of relying on the Directive for protection in an attempt to obtain an undue advantage.
A person who only applies for a job with a view to claiming compensation for discrimination, rather than to be appointed to the role primarily, does not fall within the protection of the EU discrimination laws; such an application may be considered to be an abuse of rights.
This case may provide some comfort to employers with concerns regarding their recruitment policies and any potentially disingenuous job applicants.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.