BAG on discrimination under Germany’s General Equal Treatment Act

Not every instance of disabled employees being treated differently constitutes illegal discrimination, as demonstrated by a ruling of the Bundesarbeitsgericht (BAG), Germany’s Federal Labour Court, from January 26, 2017 (Az.: 8 AZR 736/15).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to Germany’s Allgemeines Gleichbehandlungsgesetz (AGG) [General Act on Equal Treatment], it is not permissible to discriminate against employees based on their race, gender, religion, disability or age, among other things. Notwithstanding this, not every instance of employees being treated differently constitutes a violation of the AGG. This is clear from a recent judgment of the Bundesarbeitsgericht.

An action brought by an employee who was severely disabled in half of his body was heard by the BAG. The former had been employed at a mail-order firm with 27.5 weekly working hours since 2011. He had repeatedly sought to have his weekly working hours increased. In the summer of 2013, the mail-order company increased the working hours of 14 part-time workers and concluded amendment agreements to this effect with them. The plaintiff, who had only been hired relatively recently, was the only worker who was not considered in relation to this increase. The plaintiff felt that he was being discriminated against on the basis of his disability and raised a claim to have his working hours increased and, in the alternative, sued for damages corresponding to the remuneration he had lost out on.

The Landesarbeitsgericht (Regional Labour Court) of Hesse granted the action with respect to the claim for damages. However, the BAG delivered a different verdict on appeal, stating that there can only be a presumption that discrimination has taken place pursuant to the AGG if there is evidence that indicates that one of the grounds listed in sec. 1 of the AGG, e.g. a disability, can in all probability be attributed to the discrimination in question. The BAG went on to say that it is not sufficient to proceed on the basis that one of the listed grounds might possibly be causally related to this. Due to the fact that it had not been possible to reach a conclusive decision based on the findings that had already been made to date, the matter was referred back to the Regional Labour Court for another hearing.

Working hours, remuneration, holiday entitlements, dismissal as well as discriminatory treatment are common grounds for legal disputes between employers and employees. Lawyers who are experienced in the field of labour law can advise on all issues pertaining to the workplace, from drafting agreements to exceptional notices of dismissal.

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