Federal Labour Court, 22.06.2011, Ref.: 8 AZR 48/10
The General Equal Treatment Act (AGG) is intended to prevent discrimination on the grounds of race, ethnic origin, religion or belief, disability, age, gender or sexual identity (see Section 1 AGG - Objective of the Act).
The AGG is therefore playing an increasingly important role in working life in particular. Employers as well as employees and employee representatives should implement and monitor compliance with the AGG.
If a person involved in working life nevertheless violates the AGG, they must pay compensation for the damage incurred. Not only wilful, but also negligent discrimination can lead to compensation.
The respective employer is also liable for so-called vicarious agents (e.g. in accordance with Section 278 BGB for supervisors) and for board representatives (e.g. in accordance with Section 31 BGB for managing directors).
Pursuant to Section 15 (4) AGG, a claim for damages under the AGG must be asserted in writing within a period of two months, unless the parties to the collective agreement have agreed otherwise.
In the case of an application or career advancement, this period begins with the receipt of the rejection and in other cases of discrimination at the time at which the employee becomes aware of the discrimination.
In the above-mentioned case, the Federal Labour Court had to decide whether the employer's request to the employee to attend a German course in order to acquire language skills necessary for work constituted a violation of the General Equal Treatment Act.
Background to the lawsuit
The plaintiff had been working in a swimming pool operated by the defendant since 1985. Her mother tongue was Croatian. She initially worked as a cleaner before being authorised to work at the cash desk over 14 years ago. This position required a sufficient command of German, as she acted as a deputy for the cashiers.
Request for language improvement
In spring 2006, the defendant's plant manager asked the plaintiff to improve her German language skills by attending a German language course outside working hours for a fee. The defendant refused to pay the course costs. Despite the request, the plaintiff did not take part in such a course, which led to a warning.
Compensation claim and lower courts
The plaintiff subsequently claimed compensation of 15,000 euros for discrimination based on her ethnic origin. However, the claim was unsuccessful in all previous instances. Both the Labour Court and the Regional Labour Court did not recognise any discrimination and dismissed the claim.
Decision of the Federal Labor Court
The Federal Labour Court confirmed the decisions of the lower courts and also rejected the defendant's obligation to pay compensation. The court argued that the employer can require the completion of language courses if this is necessary for the fulfilment of work duties. Requiring employees to bear the costs themselves and to attend the course outside of working hours could be in breach of the employment contract or collective labour agreement regulations. However, this possible violation does not constitute unlawful discrimination that would trigger claims for compensation.
Source: Federal Labor Court
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