Most employment rights apply to individuals once they are an "employee" or "worker" within an organisation. In fact one of the most common claims brought by employees, unfair dismissal, requires an employee to have accrued 2 years continuous service. In the case of discrimination however, no such condition exists and individuals can pursue a complaint if they feel they have been the victim of discrimination during the recruitment process. Sadly there are certain individuals who are aware of this and who seek to exploit the system by submitting job applications without any intention of obtaining employment.
One example of this which I have encountered involved a well known serial litigant from the Yorkshire area who applied for a vacancy advertised by a client by submitting two very similar applications, one in his real name, Mr Khan and another in a false name, Mr Smith. The client unwittingly invited "Mr Smith" to an interview but not Mr Khan. Shortly after the invite/rejection letters were sent, my client received a letter from Mr Khan explaining that he was in fact Mr Smith and was seeking damages for discrimination on the grounds of race. Fortunately we were able to persuade Mr Khan that his claim would not succeed because the client had based it's decision on one significant difference between his 2 CV's, the university he had "attended". "Mr Smith" had attended a university which the client had a close association with and from which it had a history of recruiting graduates whereas Mr Khan's CV had referred to a different university and eventually Mr Khan dropped his claim.
In the recent decision of Kratzer v R+V Allgemeine Versicherung AG handed down by the European Court of Justice (ECJ) last week the ECJ held that where a person who applies for a role solely with the intention of seeking compensation for discrimination rather than actually obtaining employment, they cannot seek compensation for discrimination under EU anti-discrimination law.
In Germany Mr Kratzer was a well known serial litigant who applied for one of a number of graduate trainee positions which had been advertised by insurer R+V. The advertisment specified that candidates should have amongst other things, a good university degree completed in the last year or to be completed in the coming months as well as relevant vocational experience in one of the fields of economics, law, business informatics or mathematical economics. Mr Kratzer who was a lawyer and former manager within an insurance company and clearly more than qualified against the criteria applied for one of the trainee lawyer positions.
On being rejected he claimed compensation of EUR 14,000 for age discrimination. On finding out that all four positions were offered to women (from 60 applicants split equally between both sexes) he also claimed sex discrimination and demanded a further EUR 3500 compensation. R+V informed Kratzer that his application had originally been rejected as a result of an automated selection process and therefore invited him to attend an interview which he declined.
The claim was initially unsuccessful and Kratzer appealed to the Federal Labour Court of Germany which referred the matter to the ECJ. As a result, the ECJ held that a mock candidate who makes an application for a vacant role where they have no intention of accepting the position if offered cannot rely on the protection available to genuine applicants under EU anti-discrimination legislation on the basis that their actions amount to an abuse of law. Furthermore,they cannot claim to be a victim or have suffered any loss or injury to feelings.
Employers must be capable of proving that an application is fraudulent and relates to a mock candidate but as can be seen from the scenario referred to above and in the Kratzer case (his experience did not fit the advertised position) this should not always prove to be difficult.