EU law does not require employers to disclose details of successful job applicant to unsuccessful candidate

Meister v Speech Design Carrier Systems GmbH Case C-415/10 ECJ

recruitment | job applicant | disclosure of information | discrimination

The European Court of Justice has held that an employer is not obliged to provide an unsuccessful job applicant with information on the successful candidate, although a failure to do so could lead to an inference of discrimination in a subsequent tribunal claim. 

In Germany, Ms Meister, a Russian national born in 1961, responded to a job advertisement placed by Speech Design Carrier Systems GmbH. The company was seeking to recruit an "experienced software developer". Ms Meister held a Russian degree in systems engineering, which is a qualification that is recognised in Germany as the equivalent of a degree awarded by a university of applied science. 

Ms Meister was unsuccessful. She was not invited to an interview or told the grounds on which her application had been rejected. Ms Meister believed that her application had been rejected because of her sex, age and ethnic origin. She claimed discrimination in the German courts, and sought the disclosure of the company's file on the successful candidate, so that she could prove that she was better qualified than the individual who was recruited. 

The German federal court referred to the ECJ the question of whether or not EU law entitles an individual, who is plausibly claiming that he or she meets the job requirements and whose application was rejected, to have access to information indicating whether or not the employer engaged another applicant and, if so, the criteria on which the decision was made. The German court went on to ask whether or not the fact that the employer refuses to disclose the information requested gives rise to a presumption that the individual was discriminated against. 

The ECJ reminded itself that, when an individual who considers him- or herself to have been wronged because the principle of equal treatment has not been applied, it is for him or her to establish facts from which it may be presumed that there has been direct or indirect discrimination. It is then for the employer to prove that there has been no breach of the principle of equal treatment. It is for the national court to decide whether or not the individual has established facts from which a presumption of discrimination can be drawn. 

The ECJ considered that previous case law has shown that EU law does not specifically entitle individuals who consider themselves to have been the victim of discrimination to information that might allow them to establish facts raising a presumption of discrimination. However, the ECJ said that it is possible that the employer's refusal to disclose information to the employer could defeat the objectives of the EU Directives on equal treatment. It is for the national court to consider whether or not the objectives of the EU Directives are being undermined. 

In relation to this case, the ECJ pointed out that the national court could take into account that the company:

• seems to have refused Ms Meister any of the information that she requested;
• did not dispute that her expertise matches the criteria in the job advertisement;
• did not invite her to an interview after the publication of the job advertisement. 

The ECJ concluded that EU law must be interpreted as follows:

• A worker who has a plausible claim that he or she meets the requirements listed in a job advertisement and whose application was rejected is not automatically entitled to have access to information indicating whether or not the employer engaged another candidate at the end of the recruitment process. 
• Nevertheless, it cannot be ruled out that the employer's refusal to grant any access to information can be one of the factors to take into account in the context of establishing facts from which it may be presumed that there has been direct or indirect discrimination. It is for the referring court to determine whether or not that is the case in the main proceedings, taking into account all the circumstances of the case before it. 

Additional resources

• Where an unsuccessful job applicant asks for details of why he or she was not offered the job is the employer obliged to disclose those details? The XpertHR FAQs section answers this frequently asked question. 
• Questionnaire for obtaining information on prohibited conduct under the Equality Act 2010 Use this questions form to familiarise yourself with the form that an individual who thinks that he or she has been discriminated against because of a protected characteristic under the Equality Act 2010 will send to the employer to gather further information. 
• Deer v Walford and another EAT/0283/10 In this case, the Employment Appeal Tribunal held that the process for deciding what, if any, inferences should be drawn from answers to a statutory discrimination questionnaire is no different from the steps that tribunals should take in any other case where an inference of discriminatory behaviour is sought to be drawn. 

Case transcript of Meister v Speech Design Carrier Systems GmbH (on the BAILII website)