Rights of Job Applicants in Germany
The German Federal Labor Court made a very clear ruling regarding job applicants in Germany who are not offered the position for which such applicants applied. In the Federal Labor Court’s view, a rejected applicant has no right to know whether another applicant was offered or accepted the position. (Federal Labor Court, verdict dated April 25, 2013, case number 8 AZR 287/08)
This case concerned a plaintiff who was born in the former Soviet Union in 1961. She applied for a position that was advertised by a German company, the defendant in this case. Even though the plaintiff fulfilled all required qualifications, she was rejected and did not receive a job offer. The plaintiff presumed that this decision was based on discrimination for her gender, age and origin. The Federal Labor Court submitted the case to the European Court of Justice to determine whether the job applicant had a right to information regarding why she was not selected, or if another applicant was selected for the position. The European Court of Justice rendered its verdict on April 19, 2012 (case number C415/10), and stated that rejected job applicants had no right to this information under European law.
The German Federal Labor Court dismissed the case because it could not detect any evidence of discrimination. The mere refusal of the defendant to disclose any information related to the application process and/or the hiring could not establish the presumption of an inadmissible discrimination, according to Section 7 of the German General Equal Treatment Act.
However, this ruling has to be viewed with great caution. The German decision is not in line with the aforementioned ruling in the same matter of the European Court of Justice. The European judges, in contrast to the German Court, stressed that the complete refusal to give out any information regarding the hiring could actually be evaluated as a presumption of possible discrimination. This remarkable difference in the two verdicts was not explained by the German judges and as long as their reasoning remains unclear, German employers should provide a short explanation to rejected applicants when they ask the reason why they have been rejected for an open position (e.g., the other candidate better satisfies the qualification profile, made a better impression at the job interview, seems to be a more motivated and energetic person, etc.).