Do rejected applicants have the right to disclosure of documents relating to the successful candidate if they consider they have suffered unlawful discrimination the the recruitment process? No, said the European Court of Justice (ECJ) in Meister v Speech Design Carrier Systems GmbH which was a claim by an applicant for a job as an experienced software developer, who made a complaint that she had been discriminated against on the ground of her sex, age, and ethnic origin when she was not short-listed for interview. The questions considered by the ECJ were:
- 1 – does the principle of equal treatment under EU law mean that unsuccessful applicants are entitled to information about the successful applicant; and
- 2 – does refusal of that information give rise to any presumption of discrimination?
Having answered the first question in the negative, the ECJ went on to say that the second question was one for the national courts of each country to decide.
On the face of it, this decision is a relief: the possibility of routine disclosure of details of successful candidates to unsuccessful ones doesn’t bear thinking of from all sorts of angles: preserving confidentiality; the administrative burden and the sheer nuisance value. But what approach will UK courts take to deciding whether a refusal to disclose details suggests that there may have been discrimination, given that:
it cannot be ruled out that a defendant’s refusal to grant any access to information may 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
The Equality Act provides that if there are facts from which the court could decide, in the absence of any other explanation, that discrimination has occurred, then the court must hold that there has been unlawful discrimination unless the alleged discriminator shows that he did not contravene the provision. While this doesn’t mean that it is automatically dangerous to refuse to disclose details about your recruitment process, (and, indeed, it would be unacceptable to disclose personal data relating to the successful candidate without their prior consent) employers should be prepared to have their short-listing and selection procedures scrutinised.
A key tool for disgruntled applicants is the questions procedure which allows potential claimants to require an employer to respond to a questionnaire asking for an explanation for the treatment received. If the employer fails to respond to the questionnaire within eight weeks or answers it in an equivocal or evasive way, then a tribunal is entitled to infer that the reason for the failure to interview or select the candidate is related to a protected characteristic. Employers have ignored such questionnaires at their peril. However, on 15 May the Government announced a consultation on discrimination law reform including the abolition of the questionnaire procedure which has been regarded by many employers as particularly burdensome. The consultation closes on 7 August 2012.