People are actually emailing rejected applicants
Rejections sent and formulated in accordance with the law
Rejection letters to applicants are not letters like any other. Because you have to ensure that your letter does not provide grounds for a lawsuit under the General Equal Treatment Act. In addition to legal knowledge, a sure instinct is also required. Rejection letters often use formulations that are not intended to hurt or disappoint the applicant. However, you should be particularly careful here. Because the General Equal Treatment Act (AGG) provides for a reversal of the burden of proof: In case of doubt, your company must prove that the applicant was not discriminated against. It therefore makes sense to be brief.
One thing applies above all to your applicant correspondence: It must be AGG-compliant. Your correspondence must ultimately adhere to the same guidelines that apply to job advertisements.
Cancel in accordance with AGG
Nowadays it is no longer enough to formulate a friendly text that does not hurt, frustrate or disappoint the rejected as much as possible. The letter of rejection must also comply with the General Equal Treatment Act (AGG). Since the burden of proof provided for in the AGG is clearly at the expense of the employer, you should express yourself as carefully and cautiously as possible when rejecting. If the letter of rejection suggests a violation of the AGG, claims for damages can be made against your employer. Above all, the letter of rejection must not contain any reference to one of the eight criteria protected in Section 1 of the AGG (race, ethnic origin, gender, religion or belief, disability, age or sexual identity).
Evidence is sufficient
Evidence is sufficient for the applicant. If he can bring forward such things that give rise to the presumption of discrimination in the labor court, the employer must in turn prove that there has been no violation of a prohibition of discrimination. However, if you have already given certain reasons for rejection in a rejection, the labor court can limit itself to examining whether these reasons for rejection stated in the rejection letter constitute an act of discrimination. The employer can then no longer submit to the court retrospectively for what reasons he made differences here and why these were perhaps even justified. Therefore, for reasons of liability under the AGG, letters of rejection must be as neutral and cautious as possible. Even the - often only politely meant - empty phrase that, despite the applicant's qualifications, preference was given to someone else, appears to be liable to liability under the AGG. The rejected applicant - and possibly later also the labor court - could understand such a formulation in such a way that in any case no objective, but apparently “other” reasons led to the rejection for the applicant.
The letter of rejection depends on the detail. Already the statement "We have chosen an applicant who suits us better" can be an indication of discrimination. Better to use the following formulation: "We have chosen the best qualified applicant."
It is not necessary to give reasons
In addition, the employer is not at all obliged to provide the rejected applicant with information about whether he has hired another applicant (ECJ, judgment of April 19, 2012, C-415/10). It is therefore best to completely refrain from giving reasons.
After receiving the letter of rejection in the company, applicants often ask by telephone about the reasons for not being considered. Rejected applicants are regularly interested in explaining the reasons for rejection in order to be able to improve their application if necessary. However, caution is required here, especially with regard to the AGG. Here too, you should respond with appropriate restraint. The easiest way, even if not so pleasant for the applicant, is to say: "Unfortunately, I cannot provide any information about this."
Practical tip: If applicants themselves refer to one of the protected features in their cover letter or in the application process, you should definitely archive the documents and note the date they were sent separately.
Applications from severely disabled people
The employer has special obligations within the framework of his increased loyalty and care obligations towards severely disabled people and people of equal status. For example, if the employer decides against a severely disabled applicant, there are special information obligations: All those involved in the procedure must be informed of this decision without delay, stating the reasons. This means: You must not forget to include the severely disabled employee representatives and the company or employee representatives in addition to the applicant concerned.
Inform the staff council if these institutions are set up in your company.
The instruction can be given orally. Written form is not required, but is strongly recommended for reasons of evidence.
If a severely disabled or equivalent applicant has to be rejected, this must be justified. When wording, you should make sure that the rejection does not allow the conclusion that the handicap is the reason for the rejection. The justification should therefore be brief and could be based on a better professional qualification or on greater professional experience of the competitor. In order to be able to provide proof later that the severely disabled applicant actually received a reason for the rejection, you should send this by registered mail / acknowledgment of receipt.
It's all about the documentation
A rejected applicant who invokes the AGG must submit his claims in writing within a period of two months. This period begins with the receipt of the rejection. You will not be able to prove the exact receipt of the letter of rejection, as you do not send every rejection with registered mail / acknowledgment of receipt. Nevertheless, you should document the date the rejection was sent and keep a copy of the rejection for at least three months.
If you cancel electronically, you can save a read receipt from the recipient with the cancellation letter. Then you have a receipt for when the recipient read the email.
You should keep these documents for at least three months after the last rejection has been sent:
- the job posting
- each applicant's cover letter
- the compiled non-discriminatory criteria according to which the selection was made
- the documented, non-discriminatory reasons that led to the rejection (examples: incomplete application documents, no relevant training or no suitable course of study, arriving late for the interview, etc.)
- the letter of rejection with the date of dispatch
- Read confirmation from the recipient for electronic rejections
If you become aware of an applicant's characteristic protected by the AGG, such as a disability, living in a registered civil partnership, pregnancy, etc., then you should also keep a copy of the entire application documents.
This is how you formulate the rejection
Your rejection letter should include:
- Thanks for the application and the interest shown
- a reference to the large number of applications received
- Your regret that your company did not choose this applicant
- good wishes for further applications and professional career
- (sometimes) a hint that you would be happy to apply for a different job offer at a later date
- if applicable, a reference to the attached application documents
- In the case of an interview: only general statements, for example about the atmosphere in the interview, the information obtained, etc.
You shouldn't write this:
- A reason why you have chosen a different one
- Statements on the applicant's qualifications
- Statement that the applicant definitely has opportunities in other companies given his or her good qualifications
- in the case of an interview: specific statements about the interview
Avoid Dangerous Formulations Even if the following formulations are used to provide comfort and confidence, it is better not to use them! These sentences can lead to legal problems:
- "... we decided on a different applicant that was not related to your qualification"
- "Since we consider you to be very qualified, both professionally and personally, we regret having to cancel you today."
- "... after carefully reviewing the applications we received, we would like to inform you that, based on your documents, we have made a very positive impression of you. Among the applicants there are some who seem to meet the requirements in a special way. Please note that it is often only the small things that make the difference in such a selection. "
A legally compliant rejection could be as follows:
Your application from ... as ...
Dear Sir / Madam … ,
Thank you again for your application and for your interest in working in our company. Above all, we would like to thank you for taking part in the informative and pleasant conversation on ... In the meantime, we have filled the advertised position elsewhere. We hope that you will soon find a position that meets your needs. We would be delighted if you apply to us again if there is a corresponding vacancy. You can find the corresponding advertisements at www.homepage.de. We thank you for returning your submitted application documents. We wish you all the best for your professional future.
With best regards
(If a severely disabled or equivalent applicant is rejected, a reason must be given here.)
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