According to the latest statistics released by the Ministry of Justice in March 2012, between October – December 2011 there was a 40% overall increase in employees and potential employees seeking legal address in the Employment Tribunal when compared to the same quarter in the previous year.
Although the statistics for the start of 2012 have not yet been released, it seems extremely likely that this trend will not have changed. This means that HR departments need to be extra vigilant that their practices are watertight to avoid facing claims in the Employment Tribunal.
An example of the need to ensure HR Departments follow and instigate best practice from the outset is the case of Meister v Speech Design Carrier Systems GmbH 2012.
In Germany, Ms Meister, a Russian national with a degree in systems engineering, responded to an advert and applied for the post of 'experienced software developer'. Her application was rejected without an interview. Ms Meister was not told the grounds on which her application had been rejected but she believed that it was on the grounds of her sex, age and ethnic origin. Ms Meister brought a claim for discrimination in the German courts. She requested a copy of the successful candidate’s file so that she could show she was more qualified, in support of her claim.
The case was referred to the European Court of Justice (ECJ). The ECJ had to consider whether or not EU law entitles an unsuccessful job applicant to have access to information that reveals why the successful candidate was selected. The ECJ also had to decide whether or not the fact that an employer refuses to disclose the information requested can give rise to a presumption that the unsuccessful applicant was discriminated against.
The ECJ held that an employer is not obliged to provide an unsuccessful job applicant with information on a successful candidate, however, a failure to do so could lead to an inference of discrimination.
This case confirms that employers, or HR Departments on their behalf, are not under an obligation to provide unsuccessful applicants with information on the recruitment process and its outcome. However, employers must be aware that that an outright refusal to provide such information may be taken into account by a Tribunal when it is asked to decide whether an unsuccessful job applicant has been discriminated against.
HR Departments should therefore keep good recruitment records as this will help their position in the event that any such dispute arises. HR Departments should also consider any request made by an unsuccessful candidate for information on the recruitment process carefully. It is good practice to provide feedback to a disgruntled applicant, as it may prevent or stop a potential claim at an early stage. This is particularly relevant for HR Departments who ask potential candidates, on behalf of the Company that they represent, to complete discrimination questionnaires as part of their recruitment process.
Emma Vines, solicitor, Moore Blatch
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