![\"AGG_GeschuetzteRechtsgueter\"](\"https:\/\/www.mth-partner.de\/wp-content\/uploads\/2012\/09\/AGG_GeschuetzteRechtsgueter.png\")
<\/p>\nFederal Labour Court, 22.8.2013, Ref.: 8 AZR 563\/12<\/b><\/p>\n
The General Equal Treatment Act (AGG) aims to prevent and eliminate discrimination on the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual identity.<\/p>\n
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The law therefore provides for various legal claims against employers and private individuals in the event of a breach of a statutory prohibition of discrimination.<\/p>\n
One of the most important areas of application of the AGG is access to employment, i.e. the application procedure and recruitment. However, a violation of the statutory prohibition of discrimination by the employer does not lead to a claim by the person concerned to the establishment of an employment relationship in accordance with Section 15 (6) AGG. There is therefore no legal right to employment, as no one can be forced into an employment relationship.<\/p>\n
\u00a7 Section 15 AGG only provides for a claim for compensation. The court dealt with the existence of such a claim in the above-mentioned judgement.<\/p>\n
The parties disputed a claim for compensation which the plaintiff asserted on the basis of alleged discrimination due to his severe disability in the application procedure.<\/p>\n
The plaintiff was severely disabled with a degree of disability of 100 and was an industrial clerk with several years of experience in the commercial sector. In May 2010, he applied for a job advert from the police. He enclosed his CV, various certificates and a copy of his severely disabled pass with his application.<\/p>\n
Interviews were held in July 2010, to which only some of the severely disabled applicants were invited. The plaintiff was not invited and received a letter on 26 July 2010 informing him that he could not be considered for the vacancy.<\/p>\n
The plaintiff then demanded compensation from the defendant Land in the amount of EUR 5,816.37. 5,816.37 because he had not been invited to an interview despite being qualified for the advertised position.<\/p>\n
However, the recruitment process had not yet been finalised at this time. The plaintiff was informed of this and invited to an interview. According to the statement from the Presidential Board, the rejection letter was a misunderstanding.<\/p>\n
The plaintiff did not attend the appointment and was invited again. The second appointment was also not attended by the plaintiff. The plaintiff then asserted his claim for compensation before the labour court.<\/p>\n
The labour court awarded the plaintiff compensation in the amount of of one and a half months' gross salary (EUR 2,908.18). On appeal by the defendant state, the claim was dismissed in its entirety. The plaintiff pursued his claim on appeal to the Federal Labour Court.<\/p>\n
The personal scope of application of the AGG was opened. As an applicant, the plaintiff is an \"employee\" within the meaning of that law. Pursuant to Section 6 para. 1 sentence 2 alt. 1 AGG, applicants for an employment relationship are also considered employees. The defendant state is also passively legitimised as an \"employer\".<\/p>\n
There was also a breach of the prohibition of discrimination under Section 7 AGG, which is a prerequisite for the claim for compensation under Section 15 (2) AGG.<\/p>\n
Because the state had not invited the plaintiff to an interview, it had violated \u00a7 82 sentence 2 SGB IX.<\/p>\n
The plaintiff was also directly disadvantaged as a result. According to Section 3 (1) sentence 1 AGG, such discrimination always exists if a person is treated less favourably than another person in a comparable situation experiences, has experienced or would experience on one of the grounds listed in Section 1 AGG.<\/p>\n
On the one hand, the plaintiff was treated less favourably than the applicant who was hired later. Secondly, the treatment of the plaintiff was also less favourable in comparison with the other applicants invited to interviews prior to the rejection letter.<\/p>\n
A disadvantage in the context of a selection decision, in particular in the case of recruitment, already exists if the applicant is not included in the selection, but is excluded in advance and prematurely excluded from the application process. In this case, the disadvantage lies in the denial of an opportunity.<\/p>\n
The claim for compensation does not presuppose fault, so the misconduct of the employer's employees is not relevant. Rather, it is a matter of attributing the objective contributions to the actions or breaches of duty of the persons acting on behalf of the employer in the pre-contractual relationship of trust. If the employer uses its own employees or third parties to initiate an employment relationship, it is fully responsible for their behaviour.<\/p>\n
Every employer must organise the handling of their personnel matters in such a way that the legal obligations to promote severely disabled applicants are fulfilled. The application procedure must be organised in a fair and non-discriminatory manner. The persons acting on its behalf, including trainees, were for their part required to fulfil the obligation under Section 82 sentence 2 SGB IX in particular. The breach of this obligation was therefore attributable to the defendant state as an objective breach of duty.<\/p>\n
The employer could therefore no more rely on faulty procedures to exonerate itself than on staff shortages through no fault of its own. It was therefore sufficient that the cancellation letter to the plaintiff, even if it was a mere \"office error\", originated from the sphere of responsibility of the defendant state.<\/p>\n
The plaintiff was also in a comparable situation to the applicants invited to the job interviews in July 2010. He was objectively suitable for the advertised position.<\/p>\n
A possible causal link between the discriminatory treatment of the plaintiff - non-invitation to a job interview and rejection - and the characteristic of disability is not eliminated solely by the subsequent invitations to job interviews.<\/p>\n
This is already the case if the discrimination is linked to the disability or is motivated by it. A rule of evidence has been established in this regard in \u00a7 22 AGG. It is sufficient for the applicant to present the evidence that gives rise to the presumption of discrimination. If there is such a presumption of discrimination on the basis of a reason specified in Section 1 AGG, the other party bears the burden of presentation and proof in accordance with Section 22 AGG that there was no violation.<\/p>\n
Failure to invite the applicant to a job interview generally leads to the presumption of entitlement. The fact that two invitations to interviews were issued by the Executive Board after the first rejection does not retroactively remove the presumption of conformity. The procedural error could not be \"cured\" retrospectively and the breach of Section 82 sentence 2 SGB IX could not be \"reversed\" and effectively \"undone\".<\/p>\n
Neither the AGG nor the SGB IX expressly provide for a \"cure\" or even the retroactive irrelevance of a violation of Section 82 sentence 2 SGB IX associated with it by the Court of Appeal. An analogous application of the curing provisions of social law is prohibited. Their conclusive nature rules out an analogy from the outset.<\/p>\n
Moreover, a retrospective or retroactive cure would not be compatible with the structure of the AGG and, in particular, the strict deadline regulations that apply here. Once the claim for compensation has arisen, Section 15 (4) AGG and Section 61b (1) ArbGG would provide for short preclusion periods for its assertion. These time limits serve legal certainty, legal peace and legal clarity.<\/p>\n
In addition, there is a considerable risk of abuse and circumvention. An employer could deliberately leave a \"back door\" open, i.e. initially refrain from inviting severely disabled applicants, only to issue an invitation after all if the uninvited applicant complains accordingly. In this way, an employer would have it in their hands to let claims from the AGG come to nothing through targeted subsequent invitations and possibly purely \"formal\" job interviews.<\/p>\n