Sham job applications: good tidings from European Court

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Sham job applications: good tidings from European Court

26 Aug 2016

Whilst the well-publicised practice of making sham job applications in order to claim compensation for discrimination appears to have been in decline, a recent decision of the European Court has underlined that no discrimination occurs where an applicant applies for a job solely with the intention of bringing a claim.

The practice was stamped on in the UK by the Employment Appeal Tribunal in a case involving a 50-year-old experienced accountant who had applied for jobs advertised as suitable for newly-qualified accountants. When not invited to interview, the accountant then pursued claims against the employment agencies. The basis for rejecting the claim was that no disadvantage had been suffered when the applications did not succeed, as the applications were not genuine.

While some thought that this did not detract from the fact that discrimination had still occurred in the selection process – when it could not necessarily be known that the applicant had no intention of taking up the role, even if offered – the court was keen to clamp down on speculative applications, which had attracted much adverse publicity.

In a similar case in Germany, an experienced lawyer replied to an advertisement for graduate trainees. Under German discrimination law, a specific remedy for so called “non-recruitment” is provided – this being three-months’ salary if it can be shown that the individual would still not have been recruited, even if there had been no discrimination. When his application was rejected, the applicant sent a complaint claiming the three-month compensation. When the company replied to explain that his application rejection had been automatically generated against its intentions, and invited him to interview, he declined to attend and maintained his claim.

The European Court held that where an application is submitted with the sole purpose of entitling an individual to obtain compensation for discrimination, the claim does not come within the scope of the Equal Treatment Directive, ruling our protection or compensation. The applicant’s refusal to attend an interview is likely to count against him when the case returns to be heard in the German domestic court.

This bolsters the decision of the EAT in the UK, so claims arising from non-genuine applications should continue to be given short shrift. While, in the past, there have been obvious cases of abuse, employers should nonetheless remain cautious about rejecting an application as a suspected sham without clear evidence of a lack of intent to take up a post.

To speak to one of our experts about this or any aspect of employment law, please contact us or call partner Sally Bird, on 0161 832 3434.

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