Discrimination: Unsuccessful Job Applicants

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can a worker, who claims plausibly that she met the requirements listed in a job advertisement, and who did not get the job, get disclosure of information indicating whether the employer engaged another applicant at the end of the recruitment process?

No, says the CJEU in Meister v Speech Design Carrier Systems GmbH.

Ms Meister, a Russian national, applied for the post of 'experienced software developer' with Speech Design. Her application was rejected without an interview. It was not disputed that her level of experience corresponded with the requirements of the post.

She brought discrimination claims on ground of her sex, age and ethnic origin. She also claimed that production of the successful candidate's file would show that she (Meister) was more qualified than that person.

However the CJEU held that Article 8(1) of the EU Race Equality Directive (No.2000/43), Article 10(1) of the EU Equal Treatment Framework Directive (No.2000/78) and Article 19(1) of the EU Equal Treatment Directive (No.2006/54) were not to be interpreted as entitling a person in Ms Meister's position to have access to the successful candidate's file.

On the other hand, it must be ensured that a refusal of disclosure by the employer did not compromise the objective of these Directives. Therefore it could not be ruled out that an employer's refusal to grant access to the 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 in direct discrimination. Consideration of those factors (which, the Court added, might also include, in the present case, the fact that Meister was at least equally qualified and was not even called for interview) was a matter for the National Court.