Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG CJEU C-423/16 
EU Directives 2000/78 and 2006/54 set out the EU framework for anti-discrimination laws. Both of these directives are stated to apply to all persons, both public and private, in relation to ‘conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion.’ This has been implemented into UK law by the Equality Act 2010.
In this case, the ECJ had to consider whether a job applicant who does not seek the job, but simply the status of applicant in order to then bring a claim for compensation was seeking “access to employment”, and able to bring a discrimination claim.
The Claimant was a qualified lawyer who, stressing his managerial experience and qualifications, applied for one of four jobs as a graduate trainee with R+V in March 2009. His application was rejected. He promptly wrote to R+V demanding €14,000 for age discrimination and received a response explaining that the rejection had been automatically generated and inviting him for an interview. He rejected the invitation, and suggested that they discuss his future once his compensation claim had been settled. Once he learned that all four posts had been filled by women, he added a further claim for €3,500 for sex discrimination as well.
The German court of first instance dismissed his claim, and his appeal was not upheld. He appealed once more to the German Federal Labour Court, which referred two questions to the ECJ:
- Does a person who, as is clear from his application, does not seek recruitment and employment but only the status of applicant in order to bring compensation claims qualify as seeking access to employment, self-employment or occupation?
- If so, can the situation nevertheless be considered an abuse of rights under EU law?
The ECJ held that it was apparent that the Claimant had applied for the trainee position not to actually get it, but only not to get it, and then be in a position to bring a discrimination claim. As the purpose of the two EU Directives is to ensure equal opportunity for employment and occupation, he fell outside this protection.
In answer to the second question, EU law in general cannot be relied upon for ‘abusive or fraudulent’ ends. In order to establish what constitutes an abusive practice, the situation must be looked at both objectively (has the purpose of the rules not been achieved?) and subjectively (is the essential aim to obtain an unfair advantage?).
It is for national courts to identify whether EU rights have been abused in a particular case. However, in the ECJ’s opinion, it is an abuse of rights if a job applicant who intends only to make a claim for compensation for not getting the position subsequently brings that claim.
What to take away
This case is good news for employers who face claims from job applicants and reaches the same outcome in EU law as existing English cases have done by different arguments. In Keane v Investigo (2009), the EAT held that a job applicant with no real interest in obtaining the job had suffered no detriment, while in Berry v Recruitment Revolution (2010), the EAT said that the case of a claimant who had complained about an advertisement for a job for which they did not actually apply could be struck out.
The case also limits the applicability of the Directives. Previously, the ECJ has defined the concept of a worker very broadly to ensure access to employment.
However, the problem will always remain that it is very difficult to find that a person has genuinely no desire to get the job, and wants only to bring a claim for compensation. Employers should be extremely cautious about alleging this in anything other than exceptional circumstances. If an employer has genuinely been caught out for discriminatory practices, even if it suspects the application was a sham, is it right that it should escape liability?
Finally, this case highlights the risks to employers of applying automatic selection criteria to applications, particularly where the terminology in an advert may expose the company to a discrimination claim, for example by indicating a preference for younger applicants (as here, where the company was looking for recent graduates or those who were about to complete their course).