Bonn Labour Court, 09.08.2017, Ref.: 4 Ca 181/16
The principle of equal treatment under labour law states that employers may not treat individual employees less favourably than other comparable employees for arbitrary reasons when taking measures that favour their employees. This principle is derived from Article 3 of the German Basic Law (equality principle), from the civil law principle of "good faith" or from the employer's "duty of care". It applies independently of the General Equal Treatment Act (Section 2 (3) AGG).
Facts of the Case:
Plaintiffs wanted to bring a German shepherd into the offices
The parties are in dispute about the legality of the prohibition imposed by the defendant Land on the plaintiffs to bring another German shepherd into the offices. The plaintiffs work for the state enterprise X. of the defendant state. At the time the action was filed, the plaintiffs had already owned a German shepherd for over eight years, which they brought to work in the offices every day - just like the previous female dog for over twelve years - and continue to do so. In addition, the head of the regional forestry office in S., Mr T., brings his Bracke and his mountain hound to the offices. Employee T. brought his Kopov Bracke, which died in 2016, to the offices. Finally, employee X. very rarely brings his dachshund with him. With the exception of the plaintiffs' German shepherd, the dogs named belong to the hunting dog breeds.
In other forestry offices of the defendant, the bringing of dogs that do not belong to the hunting dog breeds is tolerated. The employee Q. takes two Bernese Mountain Dogs with him to his workplace at the Forest Information Centre I. in X.; an employee of the Regional Forestry Office K. brings her Chow Chow to work.
Plaintiffs sought a declaration that the ban imposed on them is unlawful
A few weeks before the lawsuit was filed, the plaintiffs acquired a second German shepherd, which they also wanted to bring into the office. The employer prohibited them from doing so, stating that only hunting dogs were permitted. Bringing the German shepherd was an exception.
The one German shepherd died during the lawsuit, but the plaintiffs now want to get a new dog, which they also want to bring into the offices.
The plaintiffs are therefore seeking a declaration that the ban imposed on them is unlawful as it violates the general principle of equal treatment.
Decision of the Bonn Labour Court
Court rules that the ban violates the principle of equal treatment under Art. 3 GG
The Bonn Labour Court has now ruled that the complaint is admissible and well-founded. The refusal to allow the second German shepherd to be brought along violated the principle of equal treatment under Article 3 of the German Basic Law and was therefore unlawful.
The general principle of equal treatment requires the employer to treat employees or groups of employees who are in the same or comparable situations equally. The employer is not only prohibited from arbitrarily discriminating against individual employees within a group; if it forms groups of favoured and disadvantaged employees, the group formation must also meet objective criteria. The formation of groups is only justified if the differentiation serves a legitimate purpose and is necessary and appropriate to achieve this purpose. Group formation is irrelevant if there are no reasonable grounds for the different treatment of the groups of people (BAG, judgement of 12 December 2007 - 10 AZR 24/07, juris, para. 21). In the private sector, the following applies: All employees of the company must be included in the comparison, not just those of the company (BAG, judgement of 22 December 2009 - 3 AZR 136/08, NZA-RR 2010, 541).
According to the above-mentioned criteria on the general principle of equal treatment, all departments of the state are to be taken into account and not only those of the respective departments of a municipality.
Differentiation between hunting and other dog breeds is not comprehensible
The refusal issued by the defendant Land was unlawful because the differentiation between hunting and other dog breeds was not comprehensible and, in particular, was not implemented in all departments. In order to be lawful, it would have been necessary for the defendant state to substantiate which objective reasons justify the unequal treatment. This was not done in the present case.
Consequently, the unequal treatment was unlawful. The complaint was therefore well-founded.
Source: Bonn Labour Court
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