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Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

TAX & LAW TELEGRAM

Let our experience be your guide 

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Recruitment without discrimination: CJEU and the new pay transparency directive

In recent years, protection against discrimination in the recruitment process has become one of the key topics in employment law. An important step in this area was the ruling of the Court of Justice of the European Union (CJEU) on 19 April 2012 in the case C-415/10, Galina Meister vs. Speech Design Carrier Systems GmbH. This ruling set new standards in the fight against gender and age discrimination, with important implications for employers and candidates in the labour market. However, the upcoming Directive (EU) 2023/970 of the European Parliament and of the Council of 10.05.2023 on reinforcing the application of the principle of equal pay for men and women for equal work or work of equal value through pay transparency and enforcement mechanisms (hereinafter the pay transparency directive), introduces new regulations that aim to increase access to information and promote equality.

Will the new legislation bring a fresh perspective on CJEU judgments such as the one of 19 April 2012?

Background of Case C-415/10

Galina Meister, a Russian national, applied twice for two similar job advertisements at Speech Design Carrier Systems GmbH. Despite meeting, in Meister’s opinion, the conditions required for the post advertised, she was not invited to an interview and received no explanation for the rejection of her application. Meister suspected that she had been discriminated against on the grounds of gender, age and ethnicity and took her case to court, seeking compensation for the discrimination and documentation containing information on the qualifications of the successful candidate so that she could prove the discrimination.

CJEU’s response

The CJEU focused on several key issues in its ruling:

  • Access to information: The Court found that EU law does not impose an obligation on employers to provide information on the qualifications of the successful candidate in order to allow an unsuccessful candidate to demonstrate discrimination. However, the complete refusal of access to information to a job candidate may constitute one element of a factual situation allowing a presumption of discrimination.
  • Burden of proof: CJEU stressed that in the case of suspected discrimination, the burden of proof may be shifted to the employer if the candidate provides sufficient evidence that he may have been subjected to discrimination. The employer must then prove that there has been no breach of the principle of equal treatment.
  • Non-discrimination principle: The Court confirmed that all job applicants have the right to equal treatment and non-discrimination on the basis of gender, age, ethnicity and other protected characteristics. Employers must avoid all forms of discrimination in the recruitment process, and any potential legal proceedings should be assessed primarily on their attitude, the way in which they refused a job applicant or the criteria adopted by the employer in recruiting one of the candidates.

More transparency through a new EU directive?

It is no secret that in the fight against discrimination in the workplace, it is at EU level that we see new impetus. Let us recall that the European Union has prepared for us a directive on transparency of remuneration, which aims, among other things, to increase transparency of remuneration and ensure equal treatment of employees in the field of pay.

While hitherto Polish law did not say much about the entitlements of job candidates, the aforementioned directive provides explicitly for the entitlement of job candidates to obtain from their future employer at least information about the initial salary for a given position or its range. If we add to this the other provisions on reporting obligations and the rights of employees (including job candidates), it turns out that the very recruitment process carried out by employers so far in most cases will have to change.

Consequences for employers

The CJEU judgment in Case C-415/10 and the upcoming implementation of the pay transparency directive have important implications for employers:

  • Transparency of the recruitment process: Employers must ensure transparency and fairness in the recruitment process to avoid accusations of discrimination. They should use clear and objective criteria when selecting candidates.
  • Documentation of decisions: Employers should carefully document their recruitment decisions and remuneration policies to be able to demonstrate that the selection of candidates and salary structure were based on objective criteria.
  • Anti-discrimination training: Regular training for those involved in the recruitment process can help avoid unconscious discrimination and ensure equality of opportunity for all candidates.

Summary

In the judgment under discussion, the CJEU notes that an unsuccessful job applicant does not have the right to receive the documentation of the candidate selected by the employer. He may, however, in justified cases, request an explanation from the prospective employer and an indication of the criteria adopted for refusal for the job. In view of the upcoming changes, this entitlement of job candidates takes on a new importance and employers must certainly focus more on ensuring equality and transparency in their recruitment and remuneration policies.

Author:
Paula Staszak-Urbańska, LL.M., Trainee attorney-at-law (PL)

+49 30 88 03 59 0
berlin@vonzanthier.com
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