When internal emails reveal that a job applicant has been rejected due to their age or another protected characteristic, and the applicant comes into possession of these emails, the disappointed applicant can seek compensation for discrimination.

In September 2015, a nursing home posted a vacancy for an executive secretary on Forem, the government employment service in Wallonia. The job description specified that perfect command of IT tools was required. Interested parties could contact a certain Ms C.

Ms L submitted her candidacy to the nursing home, by email, to Ms C. Her CV stated her age (52 years). A day later, Ms L received a surprising email from Ms C:

Two days later, Ms L received a new email from Ms C, indicating that the previous email had been sent to her in error. She also stated that she had made an initial selection in the applications, that they were looking for candidates with good IT skills and that the signature ‘Mrs’ was wrong. According to her, the selection criteria could still be changed depending on the applications received, which meant that Ms L’s candidacy had not been definitively rejected.

Ms L was not ultimately hired. She then filed a claim with the Labour Court under anti-discrimination legislation. She was assisted on appeal by the Center for Equal Opportunities and Combating Racism (now Unia).

The nursing home initially argued that Ms L was not allowed to provide Ms C’s email to the Court, nor to rely on it in making her case. It was argued that the email was not addressed to her and that Ms C had not given her permission to read it.

The Labour Court rejected this argument, as Ms C had in fact sent the email in question to Ms L, meaning that she was allowed to use it. Anyone who mistakenly provides evidence of discriminatory acts to the opposing party cannot logically hide behind their own mistake, the Court ruled.

The nursing home also argued that there were two other reasons why Ms L was not hired. These were, first, her poor IT skills and, second, the stylistic error in her signature.

The Labour Court, however, held this to be irrelevant. When adverse treatment is based on multiple motives, it is sufficient for one of these motives to be linked to a protected criterion (such as age) for the adverse treatment to be considered discriminatory under the law. In the case at hand, it was sufficient that the decision not to hire Ms L was based, in part, on her age. The nursing home was therefore ordered to pay compensation equal to three months’ wages.

This ruling shows that discriminatory acts that occur in the recruitment phase can be sanctioned in practice. Although it will often be difficult for the applicant to gather the evidence required to prove discrimination, an employer who acts unlawfully in this regard is playing with fire. As the Labour Court’s ruling shows, a simple e-mail with a discriminatory statement of five words is sufficient to support an order to pay compensation ranging from three to six months’ wages. What’s more, it is not possible to rectify the situation afterwards by citing an error in sending an email, for example, or by referring to other, non-discriminatory motives. It is therefore advisable to be extremely careful in communicating with applicants one does not wish to retain.

*Claeys & Engels