Hamm Regional Labour Court, 30.06.2010, Ref.: 2 Sa 49/10
The employment relationship of severely disabled persons and persons with equivalent status is specially protected in Germany.
Accordingly, employers are keen to obtain information about the existence of a disability in the employee before or during the employment relationship.
In principle, the severely disabled person is not obliged to disclose any unfavourable circumstances during the interview.
Only if the disabled person recognises that he or she will not be able to perform the future work properly due to the disability or is significantly restricted in his or her ability to perform, does he or she have a duty of disclosure in the job interview.
If this is not the case or if a job-neutral disability is asked about, the disabled person has the right to lie, as these questions fall under the prohibition of discrimination in accordance with §§ 1, 7 AGG.
In some situations, a claim for compensation in accordance with Section 15 (2) AGG may even be considered if the material compensation is not already sufficient.
However, the situation is different in the case of an existing employment relationship.
The employer's question about the existence of a severe disability is not fundamentally inadmissible here.
The question may be admissible in particular if the employer wishes to obtain information about the applicability of the protection against dismissal provisions in favour of the severely disabled employee with regard to imminent dismissals.
In the above-mentioned decision, the Hamm Regional Labour Court had to decide whether a severely disabled employee could rely on the lack of approval from the integration office, even though he had denied the existence of a severe disability when asked by the employer.
Facts of the Case:
The plaintiff was dismissed by the defendant for operational reasons due to insolvency.
Severely disabled employee asserts the lack of consent of the integration office in court
As the plaintiff had an officially recognised severe disability of 60, he was of the opinion that the dismissal was invalid due to the lack of approval from the Integration Office in accordance with Section 85 SGB IX.
In order to avoid errors in the social selection process, the defendant had submitted a questionnaire to all employees during the insolvency proceedings, in which information on marital status, the number of dependent children and severe disability was requested.
In the job interview, the plaintiff had denied the question about severe disability
The plaintiff had denied the question of severe disability.
The defendant took the view that the plaintiff could not invoke the protection against severe disabilities because he had answered the question previously put to him incorrectly.
Judgement of the LAG Hamm
The LAG Hamm followed the view of the defendant. It is true that the dismissal of the defendant challenged by the plaintiff required the approval of the integration office pursuant to Section 85 SGB IX.
Plaintiff could not invoke protection against dismissal due to lie in job interview
However, the plaintiff was not able to invoke the special protection against dismissal pursuant to Section 85 SGB IX in the present case because he had untruthfully denied the question previously put to him about his status as a severely disabled person.
From the point of view of contradictory behaviour, he was therefore prevented from invoking the lack of consent from the Integration Office in accordance with Section 242 BGB.
Question not fundamentally inadmissible
This is because the question about the severely disabled status is not fundamentally inadmissible in an existing employment relationship.
This is because it does not fall under the prohibition of discrimination pursuant to §§ 1, 7 AGG if it serves to enable the employer to examine whether protective provisions under dismissal law apply in favour of the severely disabled person.
Source: Regional Labor Court Hamm
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