The European Court has heard the first case concerning whether the Equal Treatment Directive applied to an applicant who made an application not because he wanted a role but rather to seek compensation for discrimination.

The applicant applied for a trainee position as a graduate when he was neither.  His application was rejected at the first round and he brought a claim for age discrimination.  The Company responded to say that he had been declined in error and he was invited to interview.  He declined stating that he would discuss future employment applications once his compensation claim was settled.  He subsequently found out all the roles had been given to woman and added a claim of sex discrimination.

The Court held that such an applicant does not fall within the definition of ‘access to employment, self-employment or to occupation’ within the Directive and as such he did not get protection from the discrimination laws. Accordingly, vexatious job applicants are not covered by EU discrimination laws. EU law could not be relied on for abusive or fraudulent ends. While it was for the national court to determine whether there had been abuse on the facts in the instant case, the ECJ confirmed that a situation in which a person applies for a position solely in order to claim discrimination might, if the requisite conditions under EU law were met, constitute an abuse of rights.
This poses an interesting factual question to be answered by domestic courts around when is an applicant truly an applicant.  I have known clients to be rejected for discriminatory reasons who are so aggrieved by the process that they do not feel that the organisation is one they want to work for any longer.  Since that is caused by the organisation’s conduct it is likely that at the time they were genuine applicants.  I have seen cases involving serial litigants purely applying for roles to claim compensation but I can also see a scenario where the Respondent does put things right and then say if you don’t attend interview you cannot have been serious in the first place, relying on Kratzer v R+V Allgemeine Versicherung AG.