Highlighting the key checks carried out during the recruitment process and explaining the risks and practical considerations to be taken into account when offering employment
A selection of key cases on discrimination during the recruitment process, with a summary of the decision and implications for employers.
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Meister v Speech Design Carrier Systems GmbH | European Court of Justice | 19 Apr 2012
A Russian national with a degree in systems engineering applied for an advertised role of ‘experienced software developer’. She was rejected without interview or any explanation, but was confident that she had the appropriate experience that she applied again for the same role. Again she was rejected without interview or explanation. She claimed sex, age and ethnic origin discrimination and applied for an order for production of the file of the person who had been engaged to prove that she was more qualified than the successful applicant.
The issue of whether or not an employer is obliged to disclose the successful applicant’s details was referred to the ECJ, which decided that there is no automatic right to information on a prospective employer’s recruitment process. An employer’s refusal to disclose information may, however, be one of a range of factors to be taken into account in deciding a subsequent discrimination claim.
Implications for employers
- Employers must have an equal opportunities policy stating that all job applicants will be selected purely on merit and must follow that policy.
- Employers should also ensure they have proper recruitment and selection procedures in place for receiving and reviewing applications.
- There is no automatic right for an unsuccessful job applicants to obtain the information requested in this case. Employers should keep appropriate records, such as interview notes and scoring or assessment systems, to meet any subsequent challenge which may be made.
- Under the relevant Race Equality and Equal treatment directives and the Equality Act 2010, a claimant has to establish facts that demonstrate that there may have been discrimination and it is then for the employer to prove that there has been no discrimination.
- A refusal to disclose relevant information may lead to an adverse inferences being made against the employer. Employers face a difficult decision when an unsuccessful job applicant seeks to establish why they were not selected for the role when their qualifications were suitable.
- Disclosure of the successful applicant’s details does not have to be provided as of right and may infringe that applicant's data protection rights.
- However, employers must justify a refusal to disclose such information because this may be held against them in subsequent proceedings as evidence of discrimination.
- When a request is made employers should consider whether or not to disclose the details and be able to justify why they did not select the applicant for interview.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.