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Job applicants: the burden of proof in discrimination claims

The law on discrimination applies equally to potential job applicants as it does through each stage of employment.  In Meister v Speech Design Carrier Systems GmbH, the European Court of Justice (ECJ) has recently given an opinion on the burden of proof in the case where a job applicant is alleging discrimination.  The employer, a German company, advertised for a software developer.  Ms Meister, a Russian national qualified for the job and was rejected.  She then re-applied when the job was advertised on the internet a few days later, and was again refused without interview.  No reasons were given for the refusal.

The EC Race Directive implemented in Great Britain by the Equality Act, provides that if an individual can demonstrate on the balance of probabilities that there are facts from which a tribunal could decide that he has been treated less favourably for a discriminatory reason, it is for the employer to prove that this is not the case.

Ms Meister brought a claim in the German tribunal alleging race, sex and age discrimination and asked the employer to produce information about the successful applicant.  The German court referred the matter to the ECJ for an opinion as to whether an unsuccessful job applicant has the right to be given information about the successful applicant and the selection criteria used, and whether if the employer does not disclose the information there is a presumption of discrimination.

The ECJ Opinion said that the law does not impose a positive obligation on employers to provide information in these cases.  The court should consider whether it could infer from the refusal to give information that discrimination had taken place.  For example an employer’s silence would be viewed differently in cases like this where the applicant was qualified for the job and those where the applicant does not have the relevant attributes.

Whilst there is no duty to provide this information job applicants, employers would be well advised to keep a paper trail of each stage of the recruitment process.  This will include details of the job description, interview notes and selection criteria.  This together with a suitable equal opportunities policy, should mean that they are in a strong position to firmly rebut any allegations of discrimination by disgruntled applicants.