Selection for interview
Labour & European Law Review Weekly Issue 271 31 May 2012
In discrimination claims, the burden of proof is on the worker to establish facts from which a Tribunal can decide whether there has been discrimination. In Meister v Speech Design Carrier Systems GmbH, the Court of Justice of the European Union (CJEU) said that employers are not required to disclose information about a successful job applicant to an unsuccessful applicant, although not doing so could be a factor that a court takes into account when deciding whether there has been discrimination.
Ms Meister, a Russian national, had a Russian degree in systems engineering which was recognised in Germany.
She applied for a job advertised by Speech Design for an ‘experienced software developer’, in October 2006 but was rejected by letter a few days later without being offered an interview. Not long afterwards she applied for a second job with the same company but, again, her application was rejected. She was not told why she had not been shortlisted.
She brought a claim in the German labour court for discrimination on the grounds of her sex, age and ethnic origin. She also sought details about the the person it appointed so that she could prove that she was better qualified. .
Decisions of lower courts
Ms Meister’s claim was dismissed by both the labour court and the Higher Labour Court. She appealed to the federal labour court which referred her claim to the CJEU.
It asked the Court to decide whether a worker, who can show that they meet the requirements for a post advertised by an employer, but whose application was rejected, has the right under the European equality directives to information about:
- whether the employer has engaged someone else; and
- the criteria they relied on.
The Court considered case law in relation to the burden of proof test and held that workers who could show that they met the requirement of the job but who had been rejected were not entitled to information indicating whether the employer had recruited someone..
However, it went on to say that, a refusal by an employer to grant access to information, could compromise the objectives of the relevant EU directives namely to take into account all the circumstances in order to determine whether there is sufficient evidence and thereby render the burden of proof rules ineffective.
A refusal to grant any access to information could be one of the factors for national courts to take into account when establishing whether there are facts from which a court can presume direct or indirect discrimination
When considering this specific case, it said that the German court needed to take into account that the company had:
- refused to allow Ms Meister any access to the information which she asked for
- admitted that her level of expertise matched that referred to in the job advertisement
- did not invite her to a job interview for either of the two vacancies that it had advertised.