Discrimination in recruitment procedures

An applicant for a job, who feels that he or she has been discriminated against by not being chosen for the job in question, is not entitled to have automatic access to information as to whether anyone was actually recruited in order to substantiate his allegations of discrimination, the Court of Justice of the European Union has recently asserted. A refusal to grant such access on the part of the employer could nonetheless militate against the latter in cases where it is alleged that some form of discrimination in a recruitment process took place.

When it comes to employment, EU law prohibits discrimination on the grounds of sex, age and ethnic origin- Mariosa Vella Cardona

When it comes to employment, EU law prohibits discrimination on the grounds of sex, age and ethnic origin. It is up to the person alleging discrimination to bring relevant factual evidence from which it can be presumed that he or she was discriminated against. On the other hand, the employer must prove that no such discrimination took place.

In this particular case, a Russian national submitted two applications in response to two advertisements published by a company seeking to recruit an experienced software developer. The applications for the job submitted by the Russian national were rejected, and she was not even given the opportunity of an interview. The company did not even inform her of the grounds for such rejection. Since the applicant was of the opinion that she fulfilled all the requirements for the post, she concluded that she had been discriminated against. To this end, she filed an action before the German courts seeking compensation from the company for such alleged discrimination. She also requested that the company ought to be obliged to produce the file of the person who was actually recruited so that she would be in a position to prove that she was more qualified than the new employee.

The German court seized of the case made a preliminary reference to the Court of Justice of the European Union requesting the latter court to determine whether EU law entitles an applicant for a job, whose application has been rejected, to have access to information indicating whether the employer engaged another candidate and on which criteria. The German court also requested guidance as to whether the fact that the employer fails to disclose the requested information ought to give rise to a presumption that the discrimination alleged by the worker took place.

The CJEU maintained that primarily the burden is on the person himself who is alleging that he or she was discriminated against to establish the facts from which it may be presumed that there has been discrimination. It is only after this takes place, that the defendant must then prove that there has been no breach of the principle of non-discrimination. The assessment of the facts from which it may be presumed that there has been discrimination is then a matter for national judicial bodies, in accordance with national law or practice, the court asserted.

The court then proceeded to confirm that EU law does not specifically entitle persons alleging discrimination in their regard, to have access to information from which they can deduce facts substantiating their allegations. However, the court also pointed out that it is up to the national courts to ensure that a refusal of disclosure by the employer does not compromise the achievement of the objective pursued by EU law in so far as equal treatment in employment is concerned. The national courts must take account of all the circumstances of the case before them in order to ascertain whether there is sufficient evidence for a finding of discrimination. A refusal on the part of the defendant to grant any access to information may be one of the factors which the court takes into account in determining whether the alleged discrimination took place or not.

The Equal Treatment in Employment Regulations have transposed the relevant EU directives into Maltese law. Nonetheless, as the above judgment reveals, it is not always an easy matter in such cases to determine where one’s rights begin and another’s end particularly when it comes to proving allegations of discrimination.

mariosa@vellacardona.com

Dr Vella Cardona is a practising lawyer and a freelance consultant in EU, intellectual property, consumer protection and competition law. She is the deputy chairman of the Malta Competition and Consumer Affairs Authority as well as a member of the National Commission for the Promotion of Equality.