Federal Labour Court, 19.12.2013, Ref.: 6 AZR 190/12
The General Equal Treatment Act (AGG), which came into force on 18 August 2006, is intended to protect people with a severe disability from discrimination in addition to protecting various legal interests. This is particularly relevant in the relationship between employees and employers in the workplace.
Here you will find a graphic on the legal interests protected by the AGG:
The definition of disability can be found in SGB IX. According to Section 2 SGB IX, people are disabled if their physical function, mental ability or mental health is very likely to deviate from the typical condition for their age for more than six months and their participation in society is therefore impaired.
Asymptomatic HIV infection can also be recognised as a severe disability by the competent authorities. The authorities have now responded to the improved possibilities for treating HIV infection, so that the conditions for issuing a severe disability pass in the presence of HIV infection have become stricter. Nevertheless, HIV infection is recognised as a severe disability in most cases.
As a result, the dismissal of an employee with HIV infection is in most cases discriminatory under the AGG if the employer could have taken reasonable precautions to enable the employee to work despite their disability.
In the Federal Labour Court case mentioned above, the court had to decide on the validity of the dismissal of an HIV-infected employee.
Facts of the Case The plaintiff, who suffered from an asymptomatic HIV infection, was hired in 2010 as a chemical-technical assistant by the defendant, which produces intravenously administered drugs for cancer treatment, to work in a so-called clean room.
On the occasion of his pre-employment medical examination a few days after the start of the employment relationship, the plaintiff informed the company doctor of his HIV infection.
The doctor then expressed reservations about the plaintiff working in the cleanroom area and informed the defendant about the HIV infection after releasing him from his medical confidentiality obligation.
On the same day, the defendant duly terminated the employment relationship. Due to his infectious illness, the company was unable to employ the plaintiff in accordance with its internal regulations.
The plaintiff then asserted his disability before the labour court and the regional labour court and argued that the dismissal was invalid because it discriminated against him due to his disability.
In addition, he demanded compensation in accordance with Section 15 (2) AGG in the amount of three months' salary due to his non-material damage. Both instances dismissed the claim. The plaintiff lodged an appeal against this with the Federal Labour Court.
Federal Labour Court: The Federal Labour Court did not follow the opinion of the lower courts, but referred the case back to the Regional Labour Court after setting aside the appeal judgement.
The dismissal would directly disadvantage the plaintiff within the meaning of Section 3 (1) AGG because it would be inextricably linked to his disability.
Whether the dismissal was nevertheless justified has not yet been determined. The Regional Labour Court still had to clarify whether the defendant could have taken reasonable precautions to enable the plaintiff to work in a clean room.
If this is not the case, the cancellation is effective. Whether the plaintiff was entitled to compensation depended on whether the cancellation was effective.
Source: Federal Labor Court
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