In Meister v Speech Design Carrier Systems GmbH, the European Court of Justice (“ECJ”) has held that EU law does not require an employer facing a discrimination claim from an unsuccessful job applicant to disclose information on the successful candidate. However, an employer's refusal to grant access to such information may be taken into account when establishing facts from which direct or indirect discrimination may be inferred. It is for the referring court to determine whether there are such facts in the instant case.
SDCS, a German company, advertised for an 'experienced software developer'. M, a Russian national with a degree in systems engineering, applied but was rejected without an interview. SDCS re-advertised the job shortly afterwards. M re-applied but again was rejected without an interview or being told why she was unsuccessful. M brought a discrimination claim against SDCS on the basis that she had been less favourably treated on the grounds of her sex, age and ethnic origin. M also sought the details of the person who was hired so that she could prove that she was more qualified than him or her.
M's claim was dismissed at first instance and reference was made to the ECJ. The ECJ noted that in Kelly v National University of Ireland it had held that the burden of proof rules do not specifically entitle discrimination complainants to information from the defendant. However, it is conceivable that a defendant who does not make such a disclosure may compromise the Directive's objective and deprive the burden of proof rules of their effectiveness. Thus, when establishing the facts from which discrimination may be inferred, it must be ensured that a defendant's refusal to disclose information is not liable to compromise the achievement of the objectives pursued by the Race Equality and Equal Treatment Directives.
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