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“I Want Your Money, Not Your Job!”

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19 October 2016

“I Want Your Money, Not Your Job!”

The European Court of Justice (ECJ) recently looked at whether a Claimant who applies for a job – not with the intention of seeking work – but rather with a view to claiming compensation only, would be protected by discrimination legislation.

Mr Kratzer applied for a job advertised by R + V Allgemeine Verischerung AG(AV) in March 2009. The job was advertised for graduate trainees with specific requirements in relation to experience, field of study, and degree quality. Kratzer’s application was denied in April 2009 due to AV’s use of automatic recruitment systems.

On 11 June 2009 he took action against AV on the grounds of age discrimination, claiming compensation of a sum of €14,000. Kratzer was later invited back to AV to meet with the head of human resources but declined the invitation. Kratzer expressed no interest in returning to AV until the compensation payment was made. Later a further €3,000 was demanded on the grounds of sex discrimination as AV employed four female trainees.

Kratzer lost in both the initial and higher courts and finally ended up in the ECJ.

The ECJ denied Kratzer’s claim. It has long been established that the ECJ refuses to allow for EU law to be used to support an individual’s fraudulent objectives. The Directives could offer no protection to an individual who could not be classed as a ‘work seeker’. The fact that Kratzer sought money and not work meant that he lost his protection. The ECJ found difficulty in labelling Kratzer as a “victim”. Given that he could no longer be considered a work seeker, he could not be a victim to any discrimination.

From this case we can see the scope of what the ECJ are willing to accept as a plausible employment discrimination claim. It is abundantly clear that the Courts will not allow individuals to use the protection offered by the Directives solely for their own personal gain.

This is a useful clarification for HR departments and recruitment agents when demands for compensation come in for unsuccessful candidates. Automatic selection / discounting systems are useful in high volume recruitment or where minimum standards of qualification or experience are a prerequisite of whether an application will be considered. These systems save significant time once set up, but will need to be checked to ensure they are calibrated to avoid discounting an applicant on potentially discriminatory grounds.

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