06. Jan 17

CJEU: Bogus applicants cannot invoke anti-discrimination legislation

Bogus applicants who do not actually intend to take up a post cannot subsequently invoke anti-discrimination legislation. This comes from a ruling of the Court of Justice of the European Union (CJEU).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to Germany’s Allgemeines Gleichbehandlungsgesetz (General Act on Equal Treatment), employees cannot be discriminated against on the basis of their gender, age, religion or ethnic background, among other things. However, if someone only applies for a post in pretence, i.e. without actually intending take up said post, just to obtain the status of applicant, he cannot subsequently invoke equal treatment and anti-discrimination legislation. That was the verdict of the European Court of Justice in its ruling of July 18, 2016 (Az.: C-423/15).

The case concerned an insurance company that had advertised trainee positions for graduates in the field of law, among others. The requirements for the applicants included that they had not graduated more than one year ago or that graduation take place in the coming months. Furthermore, the applicants also needed to have already acquired practical experience through training, internships and the like. Applicants from the field of law were supposed to be specialized in employment law or medical law. An application was also submitted by a lawyer who claimed to meet all of the stated criteria and have management experience from being a former executive employee at an insurance firm.

His application was rejected. He then asserted a claim for compensation in the amount of 14,000 euros on account of age-related discrimination, and dismissed the subsequent invitation to attend an interview, reasoning that the insurance company first of all needed to satisfy his claim for compensation. This claim was dismissed by the Arbeitsgericht Wiesbaden (Labour Court of Wiesbaden) and the Hessisches Landesarbeitsgericht (Regional Labour Court of Hesse).

The Bundesarbeitsgericht, Germany’s Federal Labour Court, also indicated its intention to dismiss the appeal, stating that the case appeared to concern a bogus application with the sole aim of asserting a claim for compensation. Before doing so, it appealed to the CJEU to ensure that this position is compatible with European law. The Court of Justice took the view that someone who formally applies for a post but has no intention of taking it up cannot invoke EU anti-discrimination legislation. It went on to say that this might even constitute an abuse of the law depending on the exact circumstances.

Lawyers who are competent in the field of employment law can advise on all issues relating to the workplace.

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