01 September 2016

Some employers will be familiar with the scenario where an individual applies for a job which on the face of it they are not suitable for, and there is a suspicion they do not genuinely want the job. They might set out a list of demands for “reasonable adjustments” for disability, or may make clear they have another protected characteristic. There are some applicants, unfortunately, who will apply for a job not because they genuinely wish to secure it, but because they wish to bring a claim for discrimination when they are not offered it (or not given an interview etc). Particularly in cases where there are complex requirements in relation to disability, the employer is being “set up to fail”.

The European Court has recently considered whether such job applicants have the protection of European law (and the national provisions on discrimination which implement European law) if the rejection of their application could be said to have been discriminatory.

The Court concluded that where an application is made not genuinely with a view to obtaining employment, but only with a view to being a job applicant and then claiming compensation, European law does not protect that person. There are various protected categories of individual – employees, jobseekers etc – but the category of “persons not genuinely seeking employment” is not protected.

This decision provides some good news for employers, and a potential line of defence if claims are brought by “spurious” applicants, but employers should be cautious about letting this decision affect their recruitment practices. There is no way of being certain whether an application is genuine or not, and therefore an employer will be taking a significant risk if it decides not to treat a particular application in a fair, even handed and non-discriminatory way. Where an applicant requests that “reasonable adjustments” be made, that should be carefully considered.

It is important to review your recruitment practices and ensure that they do comply with equal opportunities requirements. Remember that job applicants can bring tribunal claims for discrimination (with potentially unlimited compensation) and while a “fake” job applicant will have no protection, you cannot know in any particular case whether that fact can be proved.

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012

Ref: Kratzer v R+V Allgemeine Versicherung