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Compensation-Seeking Job Applicant Cannot Rely on Protection from Discrimination

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

In Kratzer v R+V Allgemeine Versicherung AG, the Court of Justice of the European Union (CJEU) has ruled that a German man who applied for a job with the essential aim of not taking up the post but of seeking compensation for discrimination was not entitled to the protection afforded by EU Directive 2000/78 (the Equal Treatment Directive) and the related Directive 2006/54 (on equal opportunities and equal treatment of men and women in matters of employment and occupation).

In March 2009, Nils-Johannes Kratzer replied to a job advertisement for a graduate trainee position with R+V Allgemeine Versicherung AG (R+V), which provides reinsurance services worldwide. He emphasised that not only did he fulfil the criteria set out in the advertisement but he also had extensive management experience in the insurance industry. His application was unsuccessful. Herr Kratzer then sent a written complaint to R+V demanding €14,000 in compensation for age discrimination.

R+V replied to Herr Kratzer inviting him to attend an interview with its head of human resources and stating that its rejection of his application had been automatically generated and was not in line with its intentions. He declined the invitation and suggested instead a discussion of his future with the company once his compensation claim had been settled.

When the company failed to accede to his request, Herr Kratzer proceeded to bring a claim of age discrimination. When he discovered that R+V had awarded the four trainee posts to women, although the more than 60 applicants were divided almost equally between men and women, he claimed a further sum of €3,500 in compensation for sex discrimination. His case was twice dismissed. When he appealed to the German Federal Labour Court, the Court decided to stay proceedings and refer to the CJEU for a ruling on whether a person who is not seeking to obtain the post advertised but only the formal status of applicant, with the sole purpose of claiming compensation, qualifies for protection under the Directives.

The CJEU ruled that the objective of the Directives is to ensure equal treatment ‘in employment and occupation’ by offering protection against certain forms of discrimination, in particular concerning ‘access to employment’. A person in Herr Kratzer’s situation does not fall within the definition of someone seeking ‘access to employment, to self-employment or to occupation’ and cannot be regarded as a ‘victim’ for the purposes of the Directives or as someone who has suffered ‘loss’ or ‘damage’. Such a job applicant cannot, therefore, benefit from the protection offered by the Directives.

Ideally, in order to ensure that job applications are dealt with fairly and without discrimination, the process of identifying which applicants best meet the needs of the job description and the person specification should be carried out by two or more people, so that it is as objective as possible. If you are faced with a vexatious applicant, contact us for advice on how to proceed.

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