No protection from discrimination where applicant not seeking employment

R+V advertised for various graduate positions, requiring a degree completed within the last year or to be completed in the coming months.  Mr Kratzer applied but his application was rejected.  He complained that he had been discriminated based on his age and demanded compensation.

Following his complaint Mr Kratzer was invited to an interview.  R+V explained that his application had been rejected automatically and this had not been their intention.

Mr Kratzer refused to attend.  He suggested his future with R+V was discussed once he received compensation.

In the event, the positions were awarded to females and he brought claims for age and sex discrimination in the German courts.  The German court concluded that Mr Kratzer had applied for the positions with a view to obtaining protected status for the purpose of seeking compensation (rather than employment).  It asked the European Court of Justice to determine (paraphrasing) whether a person is protected if they are not seeking employment and, if such people are protected, is it an abuse to make apply for a job purely to seek compensation.

The ECJ concluded that the equal treatment directives are in place to guarantee equal treatment to those ‘in employment’ or ‘seeking employment’.  Mr Kratzer was not entitled to protection as he was not seeking employment and nor was he a ‘victim’ who had sustained loss which he should be compensated for.

The ECJ went onto say that EU law cannot be relied on for abusive or fraudulent ends.

This is consistent with existing case law in England and Wales.  However, it also highlights the risk of automatic filtering of applications which can give rise to unintended discrimination.