Just in time for the 10th anniversary of the German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz – AGG) the European Court of Justice (ECJ) has clarified that European anti-discrimination law does not protect mock applicants, i.e. applicants who are not interested in being hired, but solely apply in order to bring claims on the grounds of discrimination. The judgment will make it easier for companies in Europe to reject such discrimination claims in the future.
The plaintiff, a well-known serial litigant (in Germany commonly referred to as “AGG-Hoppers”), is a fully qualified lawyer since 2001 and predominantly has been working as a self-employed lawyer ever since. Additionally, according to his application, he worked as an executive employee at an insurance company.
He applied for a legal trainee position at a big insurance company. The position required a university degree completed in the last year and relevant vocational experience. The 38-year old plaintiff was rejected. Afterwards, he claimed compensation for age discrimination. The insurance company informed him that his application had been rejected as a result of an automated selection process and sent him an interview invitation. He declined. When the plaintiff found out that the trainee vacancies had all been filled with female employees, he claimed compensation on the grounds of gender discrimination in addition.
The courts of first and second instance dismissed the case. The Federal Labor Court (Bundesarbeitsgericht – BAG) held that the plaintiff’s only intention was to be rejected and to claim compensation afterwards. Therefore, the definition of “applicant” under national law, the AGG, would not cover him.
However, the European directives on anti-discrimination do not protect the “applicant”, but the “access to employment or to dependent employment”. Thus, the Federal Labor Court asked for clarification by the ECJ as to whether a “formal” applicant, i.e. a candidate who is in fact not looking for employment, but merely the status as a candidate, is within the scope of the EU directives and if such a behavior can be held an abuse of rights.
ECJ’s Judgment (July 28, 2016 – C 423/15)
The ECJ confirmed the BAG’s opinion and denied protection of mock applicants. The court also clarified that mock applicants are not entitled to any compensation under EU law.
The ECJ held that the EU directives aim to protect individuals who are seeking recruitment and employment. Therefore, a person who does not apply for a job for the purpose of finding employment shall not be granted protection by the directives. Thus, a mock applicant does not fall under the scope of EU anti-discrimination rules and his bahavior can be regarded an abuse of rights.
However, the ECJ emphasized that the national courts have to make the factual review of the situation and to decide who is a mock. In the present case the ECJ confirmed an abusive behavior of the plaintiff, as, based on the facts established by the BAG, his only aim of applying had been to claim compensation under AGG. The BAG will now decide on the revision procedure and most probably reject the claim.
In Germany, some “professional claimants” see compensation under the rules of the AGG as a steady source of income. These “AGG-Hoppers” seek to exploit the anti-discrimination rules by submitting job applications without any intention of obtaining employment. These individuals search for indications of discrimination in job advertisements in order to bring forward their claim. The ECJ’ judgment will certainly help companies in Europe to reject compensation claims of such mock applicants.
However, even with the recent ECJ’s decision this source of income for few will probably not dry up completely because the ECJ’s criteria for abusive and fraudulent behavior are tough. Therefore, evaluation of unsuitable applicants should not be made rashly. Evaluation has to be based on the contents of the application itself in each individual case. In future, the focus will be even more on finding indications of abusive behaviour in the legal proceedings before the national courts.
For companies it will particularly be difficult to show and prove the required subjective condition of the applicant’s abusive behavior in line with the ECJ’s requirements. For instance, the objective unsuitability of the applicant based on the (not discriminatory) job profile can provide such indication for abuse. In the ECJ’s case, the great variety of the plaintiff’s applications to very different vacancies, the highlighted executive experience and rejecting the interview indicated fraudulent and abusive behavior.
Furthermore, it is key to draft job advertisements thoroughly and to keep an eye on potential discriminations in the wording. For example, employers should reconsider wording such as “looking for young professionals” or “looking for our young team”.
Orrick’s European employment team regularly advises and represents major multinational and national companies in employment related litigation in all major EU jurisdictions and can guide you through national differences in anti-discrimination regulations.