Federal Labour Court, 21.06.2012, Ref.: 8 AZR 364/11
If an employee is discriminated against on the grounds of race, ethnic origin, religion or belief, disability, age, gender or sexual identity, the General Equal Treatment Act (AGG) applies.
If the AGG is violated either intentionally or negligently by a person involved in working life, the employer must pay compensation for the damage incurred in accordance with Section 15 para. 1 sentence 1 AGG.
The respective employer is also liable for the misconduct of so-called vicarious agents (e.g. in accordance with Section 278 BGB for superiors) or for representatives of executive bodies (e.g. in accordance with Section 31 BGB for managing directors).
Pursuant to Section 15 (2) AGG, however, the claim for compensation must be asserted in due time and form.
In particular, care must also be taken to ensure that the time limit for bringing an action under Section 61b ArbGG is observed. § Section 61b ArbGG stipulates in this respect:
A claim for compensation pursuant to Section 15 of the General Equal Treatment Act must be filed within three months of the claim being lodged in writing.
has been asserted.
Pursuant to Section 3 (1) AGG, direct discrimination under the AGG occurs if an employee is treated less favourably than another person in a comparable situation is, has been or would be treated on one of the grounds listed in Section 1 AGG.
In the above-mentioned case, the Federal Labour Court had to decide whether an employee of Turkish origin was entitled to compensation because, in her opinion, she had been dismissed on the grounds of her ethnic origin, even though she had been given a very good reference.
Facts of the Case The plaintiff, who is of Turkish origin, was initially employed by the defendant as a clerk on a temporary basis. Despite work errors, the employment relationship was initially extended. However, shortly before the end of the further fixed term, the plaintiff was informed that the employment relationship would not be extended this time.
The plaintiff then asserted to the defendant, also with reference to the low proportion of employees of non-German origin, that there had been discrimination on the grounds of her ethnic origin.
The defendant denied this, but refused to give further reasons. Nevertheless, at the end of the employment relationship, the plaintiff received a reference from the defendant with the performance assessment "to our complete satisfaction", i.e. a performance assessment of "very good".
The defendant defended itself against the plaintiff's subsequent action for compensation on the grounds of ethnic discrimination by arguing that the termination of her contract had been rejected due to her inadequate work performance.
Unlike the Labour Court, the Regional Labour Court, which was called upon in the appeal, ordered the defendant to pay compensation of EUR 2,500.00 and damages.
Federal Labour Court: The defendant's appeal and the plaintiff's alternative cross-appeal were successful before the Federal Labour Court.
In the opinion of the BAG, a conviction of the defendant could not be based on the reasons given by the Regional Labour Court.
In this respect, the Regional Labour Court will have to clarify again whether the information provided by the defendant about the reasons for the non-renewal of the employment relationship has an indicative effect for discrimination against the plaintiff, because this information was possibly incorrect or contradicted the other conduct of the defendant.
In this respect, the Regional Labour Court will also have to examine whether the certificate issued was incorrect or whether the reasoning that a termination of the contract was not possible due to the plaintiff's deficiencies in performance.
The plaintiff's argument that a different, equally incorrect information had previously been provided would also have to be investigated.
The plaintiff was initially informed that her job would be eliminated due to an impending merger.
Source: Federal Labor Court
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