A rejected job applicant has no claim against the employer for information as to whether the employer has recruited another applicant.
The applicant, who was born in the Russian SSR in 1961, had applied unsuccessfully in 2006 for the position of software developer advertised by the defendant. The defendant did not inform her whether it had recruited another applicant and, if so, which criteria had been decisive for this decision. The plaintiff claimed that she had fulfilled the requirements for the advertised position and had only not been invited to an interview because of her gender, age and origin and had thus been discriminated against in violation of the General Equal Treatment Act (AGG). She demanded appropriate monetary compensation from the defendant. The lower courts dismissed the claim.
The Eighth Senate of the Federal Labour Court did not consider the plaintiff to have a right to information against the defendant as to whether the latter had recruited another applicant and, if so, on the basis of which criteria, under national law. Upon its referral to the ECJ, the latter had ruled in its judgment of 19 April 2012 (- C-415/10 -) that such a right to information does not arise under Community law either, but that an employer's refusal of any access to information may, under certain circumstances, constitute a factor to be taken into account in proving the facts giving rise to a presumption of discrimination. Based on this ECJ case law, the claim for compensation before the Eighth Senate of the Federal Labour Court was unsuccessful. Although the plaintiff referred to her sex, age and origin, she did not present sufficient circumstantial evidence which would lead to the presumption of discrimination on a ground referred to in section 1 AGG and which would lead to a burden of proof on the defendant under section 22 AGG that there had been no violation of the provisions on protection against discrimination. In the case in dispute, the defendant's refusal to provide any information did not give rise to the presumption of unlawful discrimination against the plaintiff within the meaning of § 7 AGG. § 7 AGG.
Federal Labor Court, Judgment of April 25, 2013 - 8 AZR 287/08 -
Previous instance: Hamburg Regional Labor Court, judgment of November 9, 2007 - H 3 Sa 102/07 -.
Source: Press release of the Federal Labour Court
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: info@goldberg.de
