Federal Labour Court, 21.02.2013, Ref.: 8 AZR 180/12
The General Equal Treatment Act (AGG) pursuant to Section 6 (1) AGG applies to employees, trainees, persons who are to be regarded as employee-like persons due to their economic independence and applicants for an employment relationship as well as persons whose employment relationship has ended.
Pursuant to Section 6 (2) AGG, the AGG also applies to temporary workers.
If an employee is discriminated against on the grounds of race, ethnic origin, religion or belief, disability, age, gender or sexual identity, the material scope of application of the General Equal Treatment Act applies.
The claim for damages, which may exist if the AGG has been violated intentionally or negligently, is set out in Section 15 para. 1 sentence 1 AGG:
§ Section 15 (1) AGG: In the event of a breach of the prohibition of discrimination, the employer is obliged to compensate the resulting damage. This does not apply if the employer is not responsible for the breach of duty.
In this respect, the employer may also be 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).
In accordance with Section 15 (2) AGG, the claim for compensation must then 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.
In the above-mentioned decision of the Federal Labour Court, the court had to decide on the complaint of a severely disabled office and typist who felt disadvantaged by the rejection in an application procedure at the German Bundestag.
Facts of the Case The plaintiff had been working as an office and typist in the Office of the Federal President since 1996.
After a long period of illness, it was decided in December 2009 as part of a company integration management programme that she should change jobs if possible.
The Office of the Federal President then asked the German Bundestag whether this employee - who was not named - could be deployed there.
In June 2010, the German Bundestag advertised a position as Second Secretary for the Office of the Vice-President of the German Bundestag.
The applicant, who had the required vocational training, applied for this position with reference to her severe disability.
On 20 August 2010, an interview was held with the plaintiff, which was attended by more than ten people from the German Bundestag, including the representative of the severely disabled.
On 1 September 2010, the plaintiff was rejected without giving reasons.
After announcing its intention to assert claims for damages, the German Bundestag announced on 10 December 2010 that the plaintiff's rejection had been unrelated to her severe disability. Rather, she had not made a convincing impression during the job interview.
The action was unsuccessful in the lower courts dealing with the case.
Federal Labour Court: The BAG also agreed with the opinion of the lower courts.
In the opinion of the Federal Labour Court, the plaintiff had not presented any evidence that would allow the assumption that her application had been unsuccessful due to her severe disability.
It is true that the defendant did not initially explain the reasons for the plaintiff's refusal.
However, it would only have been obliged to do so in accordance with Section 81 (1) sentence 9 SGB IX if it had not sufficiently fulfilled its obligation to employ severely disabled persons in accordance with Section 71 SGB IX.
The applicant had not demonstrated this. The other facts cited by the applicant would also not constitute evidence that she was unsuccessful in the application because of her disability. The course of the interview also did not allow this conclusion to be drawn.
Source: Federal Labor Court
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