Employment Solicitor, Chris Dobbs looks at whether employers have to disclose information to unsuccesful job applicants regarding who got the position.
Can an unsuccessful job applicant find out who got the job?
In Meister v Speech Design Carrier Systems GmbH, the European Court of Justice (“ECJ”) has held that EU law does not require an employer facing a discrimination claim from an unsuccessful job applicant to disclose information on the successful candidate.
However, an employer’s refusal to grant access to such information may be taken into account when establishing facts from which direct or indirect discrimination may be inferred. It is for the referring court to determine whether there are such facts in the instant case.
Job interview discrimination
SDCS, a German company, advertised for an ‘experienced software developer’. M, a Russian national with a degree in systems engineering, applied but was rejected without an interview. SDCS re-advertised the job shortly afterwards.
M re-applied but again was rejected without an interview or being told why she was unsuccessful. M brought a discrimination claim against SDCS on the basis that she had been less favourably treated on the grounds of her sex, age and ethnic origin.
M also sought the details of the person who was hired so that she could prove that she was more qualified than him or her.
Does the burden of truth require disclosure of information from a defendant?
M’s claim was dismissed at first instance and reference was made to the ECJ. The ECJ noted that in Kelly v National University of Ireland it had held that the burden of proof rules do not specifically entitle discrimination complainants to information from the defendant.
However, it is conceivable that a defendant who does not make such a disclosure may compromise the Directive’s objective and deprive the burden of proof rules of their effectiveness.
Thus, when establishing the facts from which discrimination may be inferred, it must be ensured that a defendant’s refusal to disclose information is not liable to compromise the achievement of the objectives pursued by the Race Equality and Equal Treatment Directives.
Employment solicitors in Bournemouth, Christchurch and Ringwood
At Frettens, we offer a free initial appointment for all new clients. This usually takes place over a coffee with one of our bright lawyers at our modern, conveniently located offices, but can also be over the phone or video call.
If you’d like to speak with one of our bright, friendly team, you can fill in the form on this page or give us a call on 01202 499255.
Employment Law News and HR Training in Bournemouth, Christchurch & Ringwood
If you are a HR professional and would like to keep up-to-date with the latest Employment Law news, you can register for our monthly employment newsletter here.
Our bright, dedicated Employment Team also deliver regular training and workshops, as well as mock tribunals. If you would like to find out more, register for our newsletter, as dates, times and venues are always included.
Comments