Discrimination: Sham job applicants
Published 6 September 2016
In this case, the ECJ held that individuals who apply for jobs only to seek compensation for discrimination, and not to obtain employment, will not be entitled to compensation.
A German company advertised for graduate trainees, including in the field of law. The advertisement specified the qualifications and/or experience required. Mr Kratzer applied for a job in the legal field, showing that he fulfilled all the requirements. His application was rejected. He sent a written complaint to the company, demanding compensation for age discrimination. He was then invited to an interview with the head of human resources, and told that the rejection of his application had been automatically generated and was an error. Mr Kratzer declined the invitation, suggesting that his future with the company could be discussed after his compensation claim had been satisfied.
Mr Kratzer brought an age and sex discrimination claim. These claims were dismissed, and after various appeals, the ECJ was asked to decide whether European discrimination legislation provided protection against discrimination to an individual whose application makes it clear that they are not seeking recruitment or employment, but just want the status of a job applicant in order to bring a claim for compensation.
The ECJ held that an application for employment submitted with the sole purpose of entitling the individual to claim compensation for discrimination is not protected by European discrimination legislation.
What does this mean for employers?
Tales of sham applications made just for the sake of bringing discrimination claims tend to be apocryphal, although it does happen from time to time. This decision bolsters an EAT decision from 2009 which held that job applicants who would not be interested in accepting a role cannot claim discrimination if the application is unsuccessful.