It is relatively common for an unsuccessful job applicant to ask for feedback from the prospective employer. In that situation the team at Pure Employment Law are often asked whether the organisation has an obligation to reply, or whether it is best to say nothing.
Our advice has always been that you don’t have to answer at all, but if you don’t say anything then the person may come to their own conclusions, which might mean that they believe they have been discriminated against. Of course, giving feedback can never remove this risk altogether, but having some form of explanation may make the candidate less likely to take the matter further.
This position has been confirmed in the recent European case of Meister v Speech Design Carrier Systems GmbH. Ms Meister applied for a job as a software developer with Speech Design on two occasions but was unsuccessful on both without interview, despite being well qualified for the position. She brought a claim for discrimination, but had no evidence to support it.
The European Court of Justice (ECJ) was asked to consider whether an unsuccessful job applicant had a right to disclosure about the recruitment process, for example who the successful candidate was, and what the criteria for selection were.
The ECJ decided that an unsuccessful candidate did not have a right to have access to information about the recruitment process. However, crucially, they went on to say that the national courts may take into account any refusal to provide information when deciding whether or not discrimination could be inferred from the facts.
In the UK, a job applicant in Ms Meister’s situation may well have chosen to use a statutory discrimination questionnaire in order to try and get information from the company so as to decide whether or not to bring a claim.
Questionnaires are extremely useful to prospective Claimants in such situations because the questions and answers are admissible in evidence at an Employment Tribunal. In addition, the Equality Act 2010 provides that an Employment Tribunal may draw an inference from an employer’s failure to respond within eight weeks, or from evasive or equivocal answers. It is therefore in the Respondent’s interests to provide a full and accurate response so as (hopefully) to demonstrate that no unlawful discrimination took place. The responses to the questionnaire can prove vital in defending Tribunal claims, so it is very important to take legal advice on these at an early stage.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team 01243 836840 or [email protected].