Can discrimination claims be an abuse of rights?

In the case of Nils-Johannes Kratzer v R+V Allgemeine Versicherung AG the Court of Justice of the European Union had to decide whether a person who was clearly not seeking employment, but merely the status of applicant in order to bring claims for compensation, was qualified to bring such claims under the EU Directives on age and sex discrimination.  Was this an abuse of rights under EU law?’

In March 2009 R+V advertised trainee positions for graduates in the fields of economics, mathematical economics, business informatics and law.  Mr Kratzer applied for a legal trainee position, emphasising that he fulfilled all the requirements in the advertisement and his experience as a lawyer and former manager with an insurance company.  When his application was rejected, Mr Kratzer responded with a written complaint demanding compensation of EUR 14,000 for age discrimination.

R+V invited Mr Kratzer to an interview with its head of HR, stating that the rejection of his application had been automatically generated and was not in line with its intentions.  But Mr Kratzer declined the invitation and suggested a discussion of his future with R+V once his compensation claim had been satisfied.

He then brought an action for the EUR 14,000 for age discrimination before the Wiesbaden Labour Court in Germany, and on finding out that R+V had awarded the four trainee posts to women only, although the 60+ applicants were divided almost equally between men and women, he increased his claim by EUR 3,500 for sex discrimination.

The Wiesbaden Labour Court dismissed the action, and the Hesse Regional Labour Court dismissed his appeal.  He appealed again to the German Federal Labour Court, which referred the above questions to the CJEU for a ruling.  The CJEU delivered its judgment on 28 July 2016 - over 7 years after the dispute first arose.

Unsurprisingly, the CJEU gave Mr Kratzer’s claims short shrift.  Dispensing with the usual Advocate General’s Opinion and looking at the underlying purpose of the Directives to ensure equal treatment of persons seeking employment, they held that “a situation in which a person who in making an application for a post does not seek to obtain that post but seeks only the formal status of applicant with the sole purpose of seeking compensation does not fall within the definition of ‘access to employment, to self-employment or to occupation’, within the meaning of those provisions, and may, if the requisite conditions under EU law are met, be considered to be an abuse of rights”.  They left the decision on costs of the case to the referring court, which one suspects is unlikely to rule in favour of Mr Kratzer if he has been abusing his rights.

Courts are never going to be sympathetic to claimants who are merely seeking compensation without having suffered a genuine loss.  Mr Kratzer’s mistake would appear to have been making payment of the compensation a precondition to the job interview.  If he was genuinely interested in the job, he should have reserved his rights and gone ahead with the application.  R+V would then have had the opportunity (if well-advised) to carry out a scrupulously fair and documented selection process for all the applicants, which could have been used in defence of his claim if he was ultimately rejected.

The case is of some comfort to companies who receive speculative discrimination claims for job applicants - though they would do well to note R+V’s careful initial response.