Legal Opinion: Disclosure of information to unsuccessful job applicants

Can an unsuccessful job applicant demand that the prospective employer provide him or her with documents about the successful applicant?

The European Court of Justice (ECJ) has held, in Meister v Speech Design Carrier Systems GmbH, that there is no such duty on an employer, but also held that refusal to disclose the information may be one of a range of factors to be taken into account in deciding a subsequent discrimination claim.

Obtaining evidence of discrimination

Ms Meister was a Russian national holding a Russian degree in systems engineering, which was a recognised qualification in Germany. The respondent company, which was based in Germany, placed a newspaper advertisement for a software developer. Ms Meister applied and was rejected without interview. The company then re-advertised the position. Ms Meister re-applied and she was again rejected without being called for interview. There was nothing in the subsequent proceedings to suggest that her qualifications for the post were unsatisfactory. She was not told why her applications had been unsuccessful. Subsequently, Ms Meister issued proceedings against the company alleging that she had been subjected to less favourable treatment on the grounds of her sex, age and ethnic origin.

She claimed compensation for discrimination and applied for an order for production of the file of the person who had been engaged, in order to prove that she was more qualified than the appointee. The question of whether or not the employer was obliged to disclose the successful applicant’s details was referred to the ECJ.

Possible adverse inference

The ECJ decided that there is no automatic right to the information, on the basis that, under the relevant EU Directives on equal treatment, a claimant has to establish facts that demonstrated there may have been discrimination and it was then for the respondent to prove that there had been no discrimination. In other words, because of the reversal of the burden of proof, the claimant is not entitled to this information, but where disclosure is refused that may lead to an adverse inference being made against the respondent.

Lessons for employers

Employers face a potentially uncomfortable situation when an unsuccessful job applicant seeks to know why they were not selected for the role when their qualifications (as here) were suitable. Although this case provides some comfort to employers in confirming that disclosure of the successful applicant’s details does not have to be provided as of right, it also signals that the employer will need to be able to justify a refusal to disclose such information because that may be held against them in subsequent proceedings as evidence of discrimination.

Therefore, when a request is made, the employer will need to consider carefully whether or not to disclose the details. This in turn will require the employer to be able to justify why they did not select the applicant. Having an equal opportunities policy stating that applicants will be selected purely on merit and adhering to that policy is essential: if an employer can point to a workforce that is diverse in all respects of age, race, gender and so on it will make it more likely to be able to defeat this type of claim if one arises.

When an employer is faced with a substantial number of job applications it can be very difficult to scrutinise each one carefully. Employers need to have proper procedures in place for receiving and reviewing applications.

Michael Scutt, employment partner at Dale Langley & Co

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